Lanier v. Hill , 30 Ala. 111 ( 1857 )

"WALKER, J.

The opinion previously pronounced in this case, (25 Ala. 554,) which is the law of the ease, covers every question now presented, except the motions to amend the bill, to take testimony, to suppress the deposition of Rossen, and to dismiss the bill without prejudice, which were made in the court below after the remandment of the cause.

1. The matter proposed as an amendment to the bill merely involved a negation of defensive averments brought forward in the answer. Consequently, it was neither necessary nor proper to amend the bill by the proposed addition to it. It is when something in avoidance of an answer — something which belongs to a replication, and not to a traverse, — is to be proved, that it must be averred in the bill. We' concur with the chancellor, that for this reason, if no other, the amendment ought not to have been made. As the chief-justice does not sit in this case, we forbear to decide the question, whether the court below should allow any amendment after a judgment in this court, reversing the decree of the chancellor, and remanding the cause “that a decree may be rendered in conformity with” its opinion.-

2. The testimony of Rossen was read in evidence on the first hearing of this cause. The chancellor properly refused to suppress it, because it was not obnoxious to the objection of irrelevancy, as this court determined, in effect, by commenting on it, and basing tbe opinion in part upon it.

3. Tbe motion to take testimony was properly overruled. Tbe reason set forth in tbe affidavit was not sufficient to authorize tbe taking of other testimony after tbe cause bad been beard, and tried in this court on appeal, and remanded for a decree in pursuance of tbe opinion of this court. Whether tbe parties should be allowed, under any circumstances, after such a judgment as was rendered in this court, to take other testimony, is an important question of practice, which, for the reason already indicated, we forbear to decide.

4. That the motion to dismiss the bill was properly overruled, under the circumstances stated in the record, is shown by the following authorities : Howard v. Bugbee, 25 Ala. 548; Muldrow & Bruce v. Dubose, 2 Hill’s Ch. 375; Innes v. Lansing, 7 Paige, 583; Thomas v. Thomas, 3 Litt. 9; Humbly v. Stainton and Wife, 24 Ala. 712.

The decree of the chancellor is affirmed.

Hice, C. L, not sitting.