Watt v. Cobb

32 Ala. 530

• Court: Supreme Court of Alabama
• Decided: January 15, 1858
• Status: Published

Opinion

WALKER, J.

“A long and unbroken chain of decisions in this court hold, that when a defendant at law, after j udgment, seeks the aid of a court of chancery, in matters which would have formed a good defense at law, he must show by his bill, that his failure to discover and avail himself of his defense at law is not attributable to any negligence or want of diligence on his part, but to fraud, accident, or the act of the opposite party.” — Taliafero v. Branch Bank at Montgomery, 23 Ala. 755, and authorities cited.

The onus of proving the excuse for not defending at law was thrown upon the complainant by the answers. The pro'of does not show that such excuse existed. There is no testimony sustaining the allegation that the complainant was discharged from the garnishment, or was led to regard himself as discharged, by any act of the court, or of the respondents. Nor does the proof tend to show that the judgments were procured by fraud.

The irregularities in the proceedings of the circuit court might have authorized a reversal of the judgments on error or appeal; but the complainant does not prove that he was prevented, by any other cause than his own want of diligence, from availing himself of the errors in those proceedings by appeal or writ of error.

The decree of the court below is affirmed.