Stinnett v. Branch of the Bank of the State , 9 Ala. 120 ( 1846 )

COLLIER, C. J.

We think it perfectly clear,'that the complainants did not adopt such measures of active diligence in defending themselves against the suit of the Bank, as the law requires, in order to entitle them to relief in equity. It is not alledged that they deputed Douglass as their agent, to defend the motion which the notice indicated would be made by the Bank against them. He- did undertake to go to Mobile and make defence, but he assured the complainants there was a mistake in the notice, that the note was not genuine, and he would go and have the mdsialce corrected, and the matter arranged and settled. Clearly showing his intention to be, to effect a settlement with the Bank by a voluntary arrangement, instead of a trial at law.

If the note described in the notice was not made by the complainants, or in any manner adopted by them, they should when'served with the notice, have taken prompt measures to make their defence. The notice, if it did not contain an exact copy of the note, no doubt described it, by date, amount, &c. so as to have enabled the complainants to have made out and verified a plea, putting in issue the making of the note, and intrusted their defence to counsel attending the court at Mobile. If this course of proceeding did not meet their views, they could have attended the court in person, or by an agent informed as to the nature of their defence, and the evidence by which they could be defended against an unjust recovery. To entitle a party to relief against a judgment at law, it is not sufficient to show that the judgment is inequitable — but the party must show, that he has used reasonable diligence to make his defence before the proper forum. [Mock v. Cundiff, 6 Por. Rep. 24; McGrew v. Tombeckbee Bank, 5 Id. 547; Hill v. McNeill, 8 Id. 432; French v. Garner, et al. 7 Id. 549.] This view is conclusive to show, that so far as the jurisdiction of Chancery is rested upon the ground, that the note upon which the judgment at law was rendered, was not made by the complainants, or never received their sanction, the bill eannot be supported.

In respect to the payment to the Bank, or its agent, of $50, by Douglass, it do’es not appear that the complainants used any diligence to become informed of the state of accounts between their principal and his debtor, previous to the rendition of the judgment. Nor does it-appear, that-upon due inquiry such information could not have been obtained. Again, the time when, and to whom the payment was made, is not explicitly alledged. A party who seeks the aid of a Court of Chancery, after a judgment at law against him, on the ground that he was ignorant of the defence, must show the exercise of ordinary diligence to discover it; or that he was prevented from employing such diligence by fraud, accident, or the act of the opposite party, unmixed with fault or negligence on his part. [Lee and Norton v. The Ins. Bank of Columbus, 2 Ala. Rep. 21.] From this view it results, that the second ground stated does not entitle thé complainants to the interposition of a court of equity. The decree dismissing their bill is consequently affirmed, with costs.