Humphries v. Adkins

142 Ala. 517

Opinion

SIMPSON, J.

The motion to dissolve the injunction, and the decree sustaining said m'otion seemed to have been based on a remark in the case of Hooper & Nolen v. Birchfield, 138 Ala. 427, to the effect that “A defendant having equitable defenses to an action at law, of which he is at the time, apprised, should not. wait until such suit has proceeded to such judgment, before applying to a court of equity for relief by injunction.” This remark was not necessary to the decision of that case, and to that extent the case is overruled.

This question had previously received careful consideration by this court, and it was held that “a defendant in a suit at law having only a purely equitable defense * * is not barred of his equity by the mere fact that h1;- defers filing his bill until judgment has been entered against him at law.” — Sternes v. Hartzler, 114 Ala. 504.

The judgment, of the court is reversed and the cause remanded.

McClellan, C. J., Tyson, Dowdell, Anderson and Denson, J. J.