Stewart v. Williams

33 Ala. 492

Opinion

STONE, J.—

The remedy provided by the Code, (sections 2408, et seg.,) is purely statutory. To claim the benefit of its remedial provisions, the applicant must set forth in his petition facts which show that, without fault on his part, he “ has been prevented from making his defense by surprise, accident, mistake or fraudand this application must be made within four months after the rendition of judgment.

In Pratt v. Keils, 28 Ala. 390, and in White v. Ryan & Martin, 31 Ala. 400, we construed the sections of the Code which confer the remedy invoked in this case. In the case last cited, the reasons offered in support of the application for a rehearing were much stronger than those found in this record. Yet we said in that case, “If all the facts stated in it are true, they would not authorize ,any court, having any regard for well established legal principles and a sound public policy, to say that the ■defendant was prevented from making his defense in the original cause, without fault on his part.” That case is decisive of this. The jaetition being fatally defective, it did not present a case of which the court could take jurisdiction, in this summary way; and the circuit court did right in repudiating the cause. The demurrer is not found in the record; and, if necessary, we would intend! it was formally put in.

Judgment of the circuit court affirmed.