Timmerman v. Martin

• Decision Date: 24 June 1937
• Docket Number: 7 Div. 425
• Citation: 234 Ala. 622,176 So. 198
• Parties: TIMMERMAN et al. v. MARTIN.
• Court: Alabama Supreme Court

176 So. 198

234 Ala. 622

TIMMERMAN et al. v. MARTIN.

7 Div. 425

Supreme Court of Alabama

June 24, 1937

Rehearing Denied Oct. 14, 1937

Appeal from Circuit Court, Etowah County; J.H. Disque, Judge.

Suit in equity by Emma Timmerman and C.W. Holman, as executors of the will of W. Frank Timmerman, deceased, against C.C. Martin, to set aside a judgment at law. From a decree dismissing the bill, complainants appeal.

Reversed and rendered.

Reed &amp Reed, of Centre, for appellants.

Motley & Motley, of Gadsden, for appellee.

KNIGHT Justice.

The bill in this cause was filed by the appellants, as executors of the last will and testament of W. Frank Timmerman deceased to vacate and annul a judgment rendered, nil dicit, against the said W. Frank Timmerman, in an action of trespass brought in the circuit court of Etowah county by the appellee Martin. The specific prayer of the bill is that the court upon final hearing will vacate and set aside said judgment at law "and by appropriate orders and decrees permit the complainants to have a hearing in said cause and make defense thereto, and to determine the liability vel non of their testate in the premises." The bill prays "for such other, further, additional and special relief as to the court may seem meet and proper."

The equity of the bill is grounded on the averments that the judgment was the result of fraud, accident, or mistake, without negligence on the part of the defendant to the judgment, or his attorneys. The bill avers that the defendant Timmerman had a meritorious defense to the law action, stating fully the defendant's defense, which he was prevented from making because of accident, fraud, or mistake, unmixed with fault or negligence on his part, or on the part of his attorneys.

It appears from the averments of the bill that the respondent, Martin, had brought suit against the appellants' testate in the circuit court of Etowah county for an alleged trespass; that the defendant in the action resided in Cherokee county and had employed Reed & Reed, attorneys residing also in Cherokee county, to represent him, and they had made due appearance in the cause, filing, among other papers, a demurrer to the complaint.

It is made further to appear that the law action was set down for trial on February 14, 1935, and a judgment, nil dicit, was rendered against the defendant on that day; that no notice, as required by section 9487 of the Code, was given the attorneys of the defendant, who resided outside of Etowah county, of the day set for the trial of said cause.

In the case of Hanover Fire Insurance Co. v. Street, 228 Ala. 677, 154 So. 816, 820, this particular section of the Code, with respect to the failure of the clerk to give the notice required by the statute to attorneys, who reside outside of the county, of the day set for the trial of their cases, came before this court for construction, and we there held in an opinion by the writer: "Section 9487 of the Code is not a mere mirage to be dissolved into nothingness at the will of officials intrusted with its execution. It is mandatory in its terms, and serves a useful purpose. To hold otherwise would not only bewilder and confound the profession, but would, at times, put litigants at the mercy of clerks of courts. Worse than that, it would convert the statute into a pitfall and snare. If a litigant may not rely upon the statute, then the statute has no field of operation, serves no useful purpose. While the Legislature was under no obligation to make provision for such notice as is prescribed by this statute, nevertheless it has done so, and in so doing has made it a part of due process of law."

A court of equity has the undoubted jurisdiction to set aside, and enjoin the enforcement of, a judgment at law procured through fraud, accident, or mistake, when the complaining party has a meritorious defense to the action, and was without negligence himself in permitting the rendition of the judgment. Hanover Fire Ins. Co. v. Street, supra; Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Id., 176 Ala. 287, 58 So. 262; Nixon v. Clear Creek Lumber Co., 150 Ala. 602, 604, 43 So. 805, 9 L.R.A. (N.S.) 1255; Rose v. Gunn, 79 Ala. 411, 415; Hendley v. Chabert, 189 Ala. 258, 65 So. 993; Sharp v. Edwards, 203 Ala. 205, 82 So. 455; Fowler v. Fowler et al., 219 Ala. 453, 122 So. 440; Fowler v. Nash, 225 Ala. 613, 144 So. 831; Choctaw Bank v. Dearmon, 223 Ala. 144, 134 So. 648; Florence Gin Co. v. City of Florence, 226 Ala. 478, 147 So. 417.

And it may be stated as a general rule that: "Any fact, which clearly proves it to be against good conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself there, but was prevented by fraud or accident unmixed with any fault or negligence in himself or agent, will authorize a court of equity to enjoin the adverse party from enforcing such judgment."

We are fully persuaded the bill, as one to obtain relief from a judgment procured by fraud, accident, or mistake, unmixed with any fault or negligence on the part of the defendant in the judgment, his agents or attorneys, contains equity, and was not subject to any of re...