Foshee v. McCreary

123 Ala. 493

• Court: Supreme Court of Alabama
• Decided: November 15, 1898
• Status: Published

Opinion

SHARPE, J.

The rules of equity are strict in requiring a party seeking relief from a judgment at law to acquit himself of fault or neglect in. respect of defenses which might have been interposed to prevent the judgment.—Tillis v. Prestwood, 107 Ala. 618; National Fertilizer Co. v. Hinson, 103 Ala. 532; Noble v. Moses Bros., 74 Ala. 604; Kirby v. Kirby’s Admr., 70 Ala. 370; Waldrom v. Waldrom, 76 Ala. 285.

The matters relied on by complainants to show their non-liability on the obligation which was the foundation of the judgment sought to be enjoined, appear to have existed at the time of the trial in the'circuit court. We find it unnecessary to consider those matters further than to note that they do not constitute equitable as distinguished from legal defenses and, therefore, could have' been availed of, if at all, in that trial. Whether they were there presented as defenses does not appear. If they were so presented and failed by any error of that court the remedy was adequate by appeal. If they were not there presented complainants’ unexplained failure to so defend must be attributed to their neglect which prevents the establishment of the same defenses in equity for the purpose of defeating the ¡judgment. - We concur with the chancellor in the opinion that the bill is without equity; and the decree dismissing same will be affirmed at appellants’ cost.

Affirmed.