Hinton v. Citizens' Mutual Insurance , 63 Ala. 488 ( 1879 )

BRICKELL, C. J.

1. A decree in chancery, rendered without personal service, against a defendant who does not appear, is not absolute for eighteen months after the rendition thereof. At any time within this period, such defendant has the liberty of filing a petition to open the decree, and to be let in to defend upon the merits ; and if sufficient cause is shown, the chancellor is bound to open the decree, and hear the cause, as if it had not been rendered. — Code of 1876, §§ 3830-31. Upon a petition disclosing merits, the chancellor opened the decree which had been rendered against the appellant, on a decree pro confesso, obtained on publication, without personal service. When the cause was opened, and the appellant let in to defend, the petition had accomplished its purposes : the cause stood in court as if the de^ cree had not been rendered; and it was not a material fact, whether constructive notice of the pendency of the suit, before the rendition of that decree, could or could not be traced to the appellant.

2. Notice, in legal proceedings, is of great variety, and its character and sufficiency, and the mode of giving it, depend upon the requisitions of the law, and its purposes, in the particular instance. The denial of notice in the petition to open the decree, if that was now a matter of inquiry, was of notice in the mode to which the appellant was entitled, and not of the constructive notice which may be imputed, to a principal, of facts made known to his agent. Besides, it was not within the scope of the duties of an auctioneer, employed to make sale of property, to take or receive notice of the pendency of suits against his principal, affecting the property. The chancellor was in error in regarding .the cause as res ad/wdicato, because'of the former decree, and the infor-/ mation given to the auctioneer, of the pendency of the suit prior to its rendition.

3. The statute is broad in its terms, that, at any time before final decree, amendments to bills must be allowed, to meet any state of the evidence which will authorize relief; and of answers, to set up any matters of defense. — Code of 1876,. § 3790. The amendment is matter of right — it is not matter of favor, resting in the discretion of the court. The only inquiry the court can make is, whether there is evidence to support the amendment, and it is material, not capable of being introduced in the present state of the proceedings. This being ascertained, the chancellor may impose such terms as are just under the peculiar circumstances, not extending beyond the payment of all costs; but he cannot disallow the amendment. No closeness of construction has been, or can be, given the statute, but it has been, and must be regarded, as remedial, and must be so construed that its beneficent purposes will be promoted. Notice of the amendment to the opposite party is necessary, when it is not claimed in open court, after his appearance. In the present confused state of the record, we cannot determine with any certainty the precise character of the amendment — whether it was of the answer, or of the petition to open the decree. But application for it was made in vacation, without notice to the complainant; and for that reason, the chancellor properly disallowed it.

4. The reformation of written instruments is made by a court of equity, only on full and satisfactory evidence that, by mistake, they express more or less than the parties intended. Until, beyond reasonable controversy, the mistake is made to appear, the writing must remain the sole expositor of the intent and agreement of the parties. — 1 Brick. Dig. 685, § 644. "Without any evidence of mistake, and though it was denied in the answer of the appellant, the chancellor proceeded to reform the mortgage to the appellee,, introducing into it lands not previously described. This was manifest error, compelling a reversal of the decree.

We do not deem it proper now to copsider and pass upon any of the other questions involved in the controversy, as they will probably hereafter be presented 'under a different stale of pleading, and, it may be, of evidence.

Beversed and remanded.