4 Div. 130.
June 26, 1926. Rehearing Denied October 16, 1924.
Appeal from Circuit Court, Covington County; W. L. Parks, Judge.
G. W. Reeves, of Florala, for appellant.
The demurrer to the bill should have been sustained. Prudential Cas. Co. v. Kerr, 202 Ala. 259, 80 So. 97; Gray v. Handy, 204 Ala. 559, 86 So. 548; De Soto v. Hill, 188 Ala. 667, 65 So. 998; 23 Cyc. 1039; Code 1907, § 5372; Van Ingin v. Duffin, 158 Ala. 318, 48 So. 507, 132 Am. St. Rep. 29; King v. Dent, 208 Ala. 78, 93 So. 823; Dunklin v. Wilson, 64 Ala. 162; McDonald v. Cawhorn, 152 Ala. 357, 44 So. 395.
J. D. Bailey, of Florala, and Lee Graves, of Montgomery, for appellee.
The assignments of error being general or joint, the appellant can take nothing unless every ground of demurrer should have been sustained. Woodruff v. Smith, 127 Ala. 77, 28 So. 736; Ashford v. Ashford, 136 Ala. 631, 34 So. 10, 96 Am. St. Rep. 82; Williams v. Coosa Co., 138 Ala. 673, 33 So. 1015; Richard v. Steiner Bros., 152 Ala. 303, 44 So. 562; Sou. Ry. v. Cunningham, 152 Ala. 147, 44 So. 658; Ætna L. I. Co. v. Lasseter, 153 Ala. 630, 45 So. 166, 15 L.R.A. (N.S.) 252; Continental Cas. Co. v. Ogburn, 175 Ala. 357, 157 So. 852, Ann. Cas. 1914D, 377; Burton v. Phillips, 4 Ala. App. 225, 57 So. 152. The bill contains equity. Prudential Cas. Co. v. Kerr, 202 Ala. 259, 80 So. 97; Gray v. Handy, 204 Ala. 559, 86 So. 548.
The bill, by a married woman, sought cancellation of a judgment at law and a discharge of the levy on her lands, and relief was granted as prayed.
Grounds of demurrer challenging the bill for laches, want of equity, etc., were properly overruled. The complainant sought to make her bill conform to the requirements of a bill asserting that she had no notice or knowledge of the pendency of the suit at law resulting in the judgment challenged, and, if so, was prevented by fraud on the part of her husband from making defense thereto. National Fertilizer Co. v. Hinson, 103 Ala. 532, 15 So. 844; Prudential Casualty Co. v. Kerr, 202 Ala. 259, 80 So. 97; Gray v. Handy, 204 Ala. 559, 86 So. 548; Handy v. Gray, 207 Ala. 615, 93 So. 614.
The equity of the bill is supported on final pleading and proof as to the phase charging lack of notice that prevented or excused complainant from defending at law. The averments of her bill are to the effect that she executed the note sued upon, was informed (does not state when) that a judgment had been rendered thereon and against her, and that "her said husband, T. A. Hall, told her that he was sued on said note, but that she was not served with a subpœna, and that she would not have to go to court, and having faith in what her said husband told her she did not attend court, and was not present at the trial of said cause, and did not know that any judgment was rendered against her until she was informed that a levy under the execution issued out of said circuit court was about to be levied upon her property, which property was and now is her own separate statutory estate, for the collection of the debt of her said husband. She further states that she has been informed that said judgment has been recorded in the office of the probate judge of Andalusia, Ala."
The proof supplies the date of the levy on complainant's land under execution, of which she was informed, and shows that the levy was made before July 7, 1921. It is also shown that she was so informed of said judgment against her at the register's office in Andalusia either on May 1 or May 11, 1921. The judgment exhibited in the bill is of date March 30, 1921; the sheriff's levy was of date June 30, 1921; and advertisement thereof began of date July 7, 1921. This was within four months after the rendition of the judgment at law. Was complainant guilty of laches in her failure to avail herself of the provisions of section 5372 of the Code, as she might have done to secure a rehearing at law in the court rendering the judgment?
The policy of courts in matters of concurrent jurisdiction is to avoid a conflict of jurisdiction. When no special equity exists, chancery courts have refused to usurp jurisdiction by granting new trials in law courts; the latter having the same authority to grant rehearings as have courts of equity. Campbell v. White, 77 Ala. 397; Hendley v. Chabert, 189 Ala. 258, 65 So. 993; De Soto, etc., Co. v. Hill, 188 Ala. 667, 65 So. 988.
The statute (Code, § 5373) intends a less expensive and more speedy remedy for a rehearing at law (in the court rendering the judgment) than is afforded in equity. Renfro Bros. v. Merryman Co., 71 Ala. 195; De Soto, etc., Co. v. Hill, 188 Ala. 667, 65 So. 988. And resort, under sections 5371 et seq. of the Code, to the law court rendering the judgment, would have been an adjudication of the matter so far as affecting subsequent procedure in equity for that purpose. Handy v. Gray, 207 Ala. 615, 93 10 So. 614; Haughy v. Strang, 2 Port. 177, 27 Am. Dec. 648. However, the remedy given for rehearing under section 5373 of the Code is in nature a new suit to set aside the judgment, and equity is not deprived of jurisdiction by reason of the statutory provision (Ex parte Brickell, Judge, 204 Ala. 441, 86 So. 1; Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304; Harris v. Harris, 208 Ala. 20, 93 So. 841), where the law court has not been invoked to that end (Handy v. Gray, 207 Ala. 615, 93 So. 614).
In applications for rehearing under the statute or in equity the petitioner or complainant must be shown to have been without fault as to rendition of the judgment, and to have exercised that degree of diligence required under the established rules. Gray v. Handy, 204 Ala. 559, 86 So. 548; Kirkland v. Franke Co., 207 Ala. 377, 92 So. 472; Hendley v. Chabert, 189 Ala. 258, 65 So. 993. Complainant had the election to proceed under the statute or at equity for "a rehearing" on grounds stated, and was not guilty of laches in filing her bill without having sought to avail herself of the four-months statute. Code, § 5372. Ground of demurrer numbered 7 was properly overruled.
The decree was for complainant under phases of her defense — against the judgment and for the discharge of the execution issuing thereon and levied upon her land — that the judgment was rendered without notice and indirectly subjected her to the payment of the husband's debts. The latter is forbidden by statute, whether that end is sought to be accomplished directly or indirectly. Code, § 4497; Vinegar Bend Lumber Co. v. Leftwich, 197 Ala. 352, 72 So. 538; Smith v. Rothschild Co. (Ala.) 102 So. 206; Leath v. Hancock, 210 Ala. 374, 98 So. 274; Morriss v. O'Connor, 206 Ala. 542, 90 So. 304; Little v. People's Bank of Mobile, 209 Ala. 620, 96 So. 763.
Post, p. 276.
The pleadings exhibited from the proceedings in the law court disclosed that the coverture of the wife and her inability to become surety for the husband was not made a ground of defense; yet it is shown that the defense was by the husband and wife as codefendants. The authority to appear in that suit for the wife is denied in the instant case; and this lack of authority is established by the evidence. If she had been served with process, so as to accord to her due process, and judgment by default had been taken against her for the husband's debt, and if she was without fault, and came within the statute in making defense thereto, on a timely application a court of equity would prevent her properties being dissipated in the payment of her husband's debts.
It is true the averments of the bill might have been more specific; the bill, however, avers want of notice or knowledge of the suit at law and sets forth the defense of surety of the wife for the husband in violation of the statute; and evidence is produced to prove that defense. The bill contains equity and the court properly overruled demurrers 1, 4, 6, and 8. It follows, therefore, that appellant can take nothing under its assignments of error Nos. 1 to 7, inclusive. Prudential Casualty Co. v. Kerr, 202 Ala. 259, 80 So. 97; Gray v. Handy, 204 Ala. 559, 86 So. 548.
The trial court, after considering the evidence, concluded that the allegations of the bill entitling complainant to relief had been proven to its reasonable satisfaction. This decree we will not disturb.
Adverting to the ruling on demurrer, it would seem that the assignments of error are of such a general nature as not to require this court to give them consideration, in that there is a failure to point out specifically wherein the court erred in its final decree.
The first six assignments of error, as stated, are joint or general. Each seeks to raise the question that the lower court erred in overruling the several grounds of demurrer assigned without specifying severally and separately the grounds of demurrer complained of. Under joint assignments of error an appellant can take nothing unless every ground of demurrer should have been sustained. We have indicated that all grounds of demurrer are not well taken. Sup. Ct. rule 1, 2 Code, p. 1506; Chavers v. Mayo, 202 Ala. 128, 79 So. 594; Hall v. Pearce, 209 Ala. 397, 96 So. 608; Cahaba Coal Co. v. Elliott, 183 Ala. 298, 62 So. 808; Continental Cas. Co. v. Ogburn, 175 Ala. 357, 57 So. 852, Ann. Cas. 1914D, 377. See, also, Woodruff v. Smith, 127 Ala. 77, 28 So. 736; Ashford v. Ashford, 136 Ala. 631, 34 So. 10, 96 Am. St. Rep. 82; Williams v. Coosa Mfg. Co., 138 Ala. 673, 33 So. 1015.
The decree of the circuit court in equity is affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.