Stephens v. Bruce

• Decision Date: 30 June 1927
• Docket Number: 7 Div. 700
• Citation: 114 So. 306,216 Ala. 677
• Parties: STEPHENS v. BRUCE.
• Court: Alabama Supreme Court

114 So. 306

216 Ala. 677

STEPHENS v. BRUCE.

7 Div. 700

Supreme Court of Alabama

June 30, 1927

Rehearing Denied Oct. 27, 1927

Appeal from Circuit Court, De Kalb County; W.W. Harlason, Judge.

Bill in equity by R.C. Stephens against J.H. Bruce. From a decree dismissing the bill, complainant appeals. Affirmed.

O.D Street, of Guntersville, and Thos. E. Orr, of Albertville for appellant.

Chas J. Scott, of Ft. Payne, for appellee.

GARDNER, J.

In cases of this character, it is well settled, under the decisions of this court, that to justify relief against the judgment rendered, complainant must not only show a want of notice or knowledge of the suit, but "he must go further, and show, both in averment and proof, that he had and has a defense good in law, and in what that defense consists." Dunklin v. Wilson, 64 Ala. 162; Fields v. Henderson, 161 Ala. 534, 50 So. 56; McDonald v. Cawhorn, 152 Ala. 357, 44 So. 395; Robinson v. Reid, 50 Ala. 69; Prudential Casualty Co. v. Kerr, 202 Ala. 259 80 So. 97. The first essential, a want of notice to complainant of the suit, we conclude was sufficiently established by the proof.

As to the second essential, a meritorious defense to the suit, complainant's case rests upon the insistence of his father, who, it appears, was the principal on the note sued upon in the law court, that certain credits were not entered and allowed. The evidence for complainant as to these credits would not have justified a cancellation of the judgment, as they do not suffice for the extinguishment of the entire indebtedness, but only a decree granting such credits on the judgment. National Fertilizer Co. v. Hinson, 103 Ala. 532, 15 So. 844. The chancellor rested the decree dismissing the bill upon his conclusion that the defense as to these credits had not been sufficiently established. The evidence upon this question is not voluminous, and has been read and considered by the court in consultation with much care. Since the passage of the act of 1915 (Acts 1915, p. 594), it has not been the policy of this court to enter into a detailed discussion of the evidence (Caples v. Young, 206 Ala. 282, 89 So. 460), nor would it here serve any useful purpose. Suffice it to say that, upon due consideration, we find ourselves in accord with the conclusion of the court below that the essential element of meritorious defense has not been sufficiently established by the proof; but we are rather persuaded the defendant's insistence is correct to the effect that all proper credits were duly entered on the note, and which were properly recognized and allowed in the suit at law.

It results that the decree rendered will be here affirmed.

Affirmed.

ANDERSON, C.J., and SAYRE and THOMAS, JJ., concur.

On Rehearing.

GARDNER J.

A careful consideration of the brief of counsel for appellant upon this application for a rehearing is persuasive that the original opinion is not sufficiently clear in respect to the actual holding of the court. Counsel reads the opinion to the effect that the essential element of a meritorious defense...