Allman v. Owen , 31 Ala. 167 ( 1857 )

WALKEK, J.

— In French v. Garner, 7 Porter, 549, court, following tbe decision of Chancellor Kent in Duncan v. Lyon, 3 John. Ch., held it to be “a settled principle, that a court of equity will not interfere after a judgment at law, unless tbe party can impeach tbe justice of the judgment, by facts or on grounds of which he could not have availed himself, or was prevented from doing it by fraud, or accident, or the act of the opposite party, .unmixed with negligence or fraud on his part.” The same principle has since been repeatedly asserted, and a determination to adhere to it, notwithstanding it may work hardships in particular cases, has been expressed. — Lee & Norton v. Ins. Bank of Columbus, 2 Ala. 21; Saunders v. Fisher and Phelps, 11 Ala. 812; English v. Savage, 14 ib. 343; Watson v. Hutto, 27 Ala. 513 ; Burden v. Stein, at the last term.

This principle rests upon a sound and conservative policy. It exacts diligence from litigant parties, and. makes the judgments of courts, in most instances, an end of litigation. From such a principle we must not be driven by the appeal which the hardship of its application to the appellee may make in his behalf. The payment was certainly a legitimate and proper ground for a credit, and was a matter of which the appellee might have availed himself in the probate court. There is no pretense that he was prevented by the fraud or act of the opposite party from bringing before the court his just claim to the credit. The excuse for not asserting the right to the credit in the probate court is, that the decree was rendered in vacation, without the knowledge of the appellee or his attorney, or of the opposite party, when the cause had long been continued from term to term by the tacit consent of both parties, in order that exceptions might be filed for the ward; and that the appellee was ou one occasion told by the clerk of the probate judge, that the papers were all in the hands of the attorney of the opposite party. There appears to have been no proof adduced.

The averment of complainant’s bill, that the decree of the probate court was rendered in vacation, is not sustained by the transcript from the record of the probate court exhibited with the bill. That transcript of a record, which, at least in the absence of proof to the contrary, imports absolute verity, shows that the settlement was ordered to take place at a regular term of the probate court, on the second Monday in August, 1854; and that there was a continuance from term to term, each month, to the 13th of August, 1855. The Code (§ 673) requires regular terms of the probate court to be held on the second Monday of each month. The continuance at each succeeding month is headed by the name of the month, followed by the word term; thus, “August term,” “September term,” &c. By these entries we must understand the regular term appointed by law. ~We will judicially take cognizance of the fact disclosed by the almanac, that the 13th of August, 1855, when the decree was rendered, was the second Monday of the month. — 1 Greenleaf on Evidence, § 5; Harvy v. Broad, 2 Salkeld, 626. It thus appears from the record, that the cause was continued at each regular monthly term, until the regular monthly term in August, when the decree was rendered. The averment of the bill, in the face of the record, that the decree was rendered in vacation, is unsustained by proof; and the omission of the answer to respond to the averment is not an admission of it, because it appears, both from the bill and the answer, that it was a matter as to which the defendants were ignorant. ¥e cannot, therefore, regard the allegation, that the decree was rendered in vacation, as an established fact in the case.

The allegation that the papers were in the possession of the attorney of the opposite party, if it be at all material, is denied in the answer, upon information and belief, and not proved. '

It was the complainant’s duty to attend the court, from term to term, while his cause was pending in it. It was not the duty of the probate judge to specially notify him of the term at which the decree was rendered; and if he hazarded his interest upon the unauthorized expectation of such notice, he has been guilty of laches, .against which the law gives him no relief. — Burden v. Stein, at last term. From term to term, for twelve months, he omits to present to the court his claim to a credit; and finally, at a regular term of the court, he is absent, and the probate judge renders a decree in accordance with the account filed by himself. If injustice has been done, it is chargeable, so fat? as the record discloses, to the complainant; and he cannot be relieved, without violence to the sound and conservative principle above stated.

The decree of the court belotv is reversed, and a decree must be here rendered, dismissing complainant’s bill; and the appellee must pay the- costs in this court, and in the court below.