Stein v. Burden , 30 Ala. 270 ( 1857 )

RICE, C. J.

By section 1915 of the Code, the court of chancery is authorized to correct any error of law or fact whieh has occurred “in the settlement of the estate of a decedent,” to the injury of a party, “without any fault or neglect on his part,” if a bill for that purpose is filed Avithin two years after the final settlement of the estate. But the court of chancery is not authorized, either by statute or common law, to revise the decree of the probate judge of Mobile county, rendered since the Code went into effect, in a proceeding commenced by a writ of ad quod damnum issued under the act of December 25th, 1841, (Pamphlet Acts of 1841, p. 5,) upon any ground, Avhich either aauis tried, or might have been tried, by the probate judge in that proceeding. A court of chancery cannot sit as a court of errors, upon such a decree, nor grant relief for more errors in it, hoAvever numerous or glaring they may be. Nor does that court sit to encourage negligence or inattention in the prosecution or defense of suits in other courts, or to relieve parties from the consequences of such negligence.

The main ground relied on for relief in this case, is, that after tbe evidence bad been beard, and tbe argument closed before tbe probate judge, it was agreed between tbe parties and that judge, “that tbe decision of tbe case should be suspended, until the opinion of tbe supreme court of tbe State could be had in a case then pending before it, which bad gone up from tbe circuit court of Mobile, wherein said Albert Stein was plaintiff in error, and your orator defendant in error;” and that some two months or more after said agreement was made, and some time after tbe opinion of tbe supreme court bad been obtained in tbe case referred to in tbe agreement, and tbe probate judge bad beard of it, be entered bis decree on bis minutes, without giving notice thereof to complainant, and thereby deprived tbe complainant of tbe opportunity of getting a bill of exceptions, and tbe benefit of a revision of bis decree in tbe appropriate mode.

Tbe bill evidently proceeds on tbe idea, that under tbe agreement, tbe complainant was entitled to notice of tbe time when tbe probate judge would render bis decree; and that tbe probate judge was bound, in good faith, by tbe agreement, not to render bis decree until he had read tbe opinion of tbe supreme court in tbe case therein referred to, or heard it read. And proceeding on this idea, tbe bill treats tbe rendition of tbe decree without notice to complainant, and before the judge bad read tbe opinion of tbe supreme court or beard it read, as a constructive fraud upon tbe complainant, whereby be was injured by being deprived of taking a bill of exceptions. Tbe construction put by tbe complainant upon tbe agreement, is unauthorized by its terms and tbe circumstances under which it was made. Under tbe agreement, be was not entitled to notice of the-time when tbe judge would render bis decree, provided tbe judge did not render bis decree until after tbe opinion of tbe supreme court bad been announced, and be bad heard of tbe result. Tbe agreement did not relieve tbe complainant from tbe vigilance required by law of him as a suitor, except for tbe interval occurring between tbe time when the agreement was made and tbe time when tbe opinion of supreme court in tbe case therein referred to was announced. There is no stipulation in the agreement that notice should be given to the complainant. In his bill he does not allege or pretend that he was ignorant of the time when the opinion of the supreme court was announced, or that he used any reasonable diligence to ascertain when the judge of probate would make his decision. The law presumes that he had notice of the time when the opinion of the supreme court was announced in his own case, and exacted of him the exercise of reasonable vigilance to ascertain when the probate judge would decide the case in which the agreement was made. No such diligence or vigilance is alleged or proved; but, on the contrary, the complainant seems anxious to convince the chancery court of his profound indifference and inattention to what the probate judge might decide, or to the time when he might make his decision; for he expressly avers, that neither he nor his attorney knew of the fact that the decree of the probate judge had been rendered, “for more than a month after the same toas entered on the minutes of said probate court.”

Upon a just construction of the complainant’s bill, we deem it impossible to say that he has been deprived of his bill of exceptions, or right of revision, “without negligence or fault on his part.” Onthe contrary, we think Ms alleged grievances are the results, mainly, if not entirely, of his own fault and negligence. If he had used proper diligence, there would have been no necessity for a resort to a court of chancery. His neglect cannot create for him a title to relief. He must bear the consequences of his neglect. Cullum v. Casey, 1 Ala. 351; Pharr v. Reynolds, 3 Ala. 521; Taliaferro v. Branch Bank at Montgomery, 23 Ala. 755; Logan v. Outen, 4 Bibb, 399; Yancey v. Downer, 5 Litt. 8; Risher v. Roush, 2 Missouri, 95; Pettes v. Bank of Whitehall, 17 Vermont, 435; Barrow v. Jones, 1 J. J. Marsh. 470.

The decree of the chancellor is erroneous. It is reversed, and a decree must be here rendered, dismissing the bill, and dissolving the injunction; and the appellee must pay the costs of the appeal, and of the court below.