Sharp v. Edwards

82 So. 455, 203 Ala. 205, 1919 Ala. LEXIS 196

• Court: Supreme Court of Alabama
• Decided: April 10, 1919
• Docket: 7 Div. 980.
• Status: Published

Opinions

MAYFIELD, J.

This is a hill by appellants to enjoin the enforcement of a judgment in a court of law on the ground that the judgment was obtained by accident, mistake, or fraud.

[1] The relief here sought is concurrent with that to be had in a court of law by proceeding under the four months’ statute (section 5372 of the Code). A party who seeks relief in a court of equity, against a judgment obtained in a court of law against him by fraud, accident, etc., must show that he was without fault or neglect in the matter, and that he was ignorant of the fraud, not only at the time the judgment was rendered, but also during all the time allowed him for a new trial, or that he was prevented from making his motion for a new trial by accident, fraud, etc., unmixed with negligence on Ms part. Evans v. Wilhite et al., 167 Ala. 587, 591, 52 South. 845.

[2] To the bill appellees filed a special plea setting up the facts that, at the time the bill was filed and the relief prayed was sought, the judgment in the law court, sought to be set aside and its execution enforced pending the suit was then suspended and superseded by an appeal therefrom being taken with a supersedeas bond by appellants to thei Court of Appeals, which appeal was then pending in the Court of Appeals. This plea seems to have been proven without dispute. This was a complete defense to this suit. The chancery court could not,, of course, set aside a judgment in the circuit court, or suspend the execution of its enforcement pending the suit, which had been theretofore suspended and removed to the Court of Appeals. The judgment in the circuit court was not then under the control of the circuit court that rendered it, by virtue of the four months’ statute or otherwise; and the chancery court, of course, could not compel it to do what it had no right, power, or jurisdiction to do.

[3] At common law a writ of error, proprio vigore, suspended or superseded all further proceedings in the lower court as for the enforcement of the judgment sought to be reviewed.

This rule was at an early date in this state - changed by statutes, which gave an absolute right of appeal to the losing party on giving security for the costs of appeal; but such appeal did not suspend the judgment, or supersede its enforcement pending the appeal. Other statutes, however, do give the appellant the right to have the judgment! suspended,, and its enforcement superseded pending the appeal by giving a supersedeas bond. Code, § 2873, et seq.

[4, 5] When such supersedeas bonds are given on appeals, the judgment is suspended, and its execution or enforcement superseded, and the whole case removed from the jurisdiction or control of the court rendering the judgment, and is transferred to the appellate court pending the appeal. This being true, of course, the chancery court could not compel the circuit court to set aside the judgment which was not under its control, but which the complainants had removed into the appellate court, where the matters were then pending. As stated above, this remedy in equity is concurrent with that of the trial court acting under the four months’ statute to set aside the judgment and award a new trial. Could the trial court have set aside the judgment after the appeal was taken and supersedeas bond given? Certainly not; the trial court loses all control when an appeal is taken, as was done in this case.

[6, 7] A trial court cannot grant a new trial even in term time if the appeal be taken and perfected before the motion for a new trial. Hudson v. Bauer Gro. Co., 105 Ala. 200, 16 South. 693. The appeal when perfected divests the lower court of all power to proceed further, unless it be to issue execution; and this cannot be done if supersedeas bond be given as required. So. Ry. Co. v. B. S. & N. O. R. R. Co., 131 Ala. 663, 29 South. 191; Ex parte City of Montgomery, 114 Ala. 115, 14 South. 365; Moore v. Randolph, 52 Ala. 530; Montevallo Co. v. Reynolds, 44 Ala. 252.

This being true, of ■ course, the chancery court could not compel the circuit court to do what it had no jurisdiction to do.

[81 It could make no difference that the appellate court affirmed or reversed the judgment appealed from, before final decree in the chancery court. The equity of the bill must be determined upon the condition or status when the bill was filed, or, certainly, when the' plea was filed setting up the defense.

It is unnecessary to pass on the other questions, as it follows the bill must be dismissed on these grounds.

Appellants concede that the circuit court lost jurisdiction or control over the judgment by virtue of the appeal to the Court of Appeals, but insist that the chancery court did not so lose control or jurisdiction. The trouble with this contention is that the jurisdiction of the chancery court was only invoked to compel or require the circuit court to do or not to do certain things in reference to this judgment — over which it then had no control. The chancery court can only compel the circuit court to do what it lias the right and power to do, and cannot compel it to do wrong or violate the law — which it would do if it granted a new trial and allowed new evidence and new .issues, and which would probably' result in a different judgment.

So far as the injunction feature of the bill was concerned, none was needed because the execution of the judgment was superseded by the supersedeas bond on appeal.

It is useless to say that the chancery court could afford no relief against the judgment in the circuit court, by rendering judgments of set-off or recoupment against it. In other words, unless the judgment in the circuit court was set aside and reopened for further proof and defenses, no relief could be awarded. The judgment in the circuit court of necessity formed the basis .upon which all the other matters set up in the bill had to rest. So, as the equity of the bill as to it must fall, all other matters which are purely incidental to it must fall with it.

It is not improper to say, however, that so far as the bill seeks relief under the doctrine of. subrogation or suretyship, it is defective in failing to show that the complainants have paid the debts or demands as to which subrogation is sought, or as to which the suretyship existed.

It follows that the decree of the lower court must be affirmed.

Affirmed.

ANDERSON, O. J., and SOMERVILLE, and THOMAS, JJ., concur.