Renfro Bros. v. Merryman & Co. , 71 Ala. 195 ( 1881 )

BRICEELL, O. J.

A defendant prevented from making his defense, or a plaintiff from supporting his cause of action, by surprise, accident, mistake or fraud, without fault on his part, against whom a judgment is rendered in a court of law, may, within four months thereafter, obtain a rehearing upon a proper application. — Code of 1876, §§ 3161-71. The statute is intended to provide in the court rendering the judgment a less expensive and more speedy remedy than is afforded by a resort to a court of equity in such cases. The class of cases in which the statute authorizes the court of law to interfere, is precisely the class of cases in which a court of equity is accustomed to afford relief against judgments at law; and in the numerous decisions which have been pronounced on the statute, this court has kept steadily in view the principles on which courts of equity proceed in granting the relief which a court of law may under its provisions extend.

"Waiving all other considerations, it is manifest the appellants were wanting in reasonable diligence in the prosecution of the claim suit in which the judgment was rendered. The affidavit made by them, and the execution of the bond were the primary and initiatory steps in the institution of a suit; these introduced the suit into the Circuit Court. Reasonable diligence required them to be active in the prosecution of the claim. The inadvertence of the clerk in omitting to enter the suit on the docket, it was their duty to cure by directing his attention to the omission. That omission did not work a discontinuance of the suit; and it was the duty of the clerk, when he discovered it, to rectify it by docketing the cause. When docketed, it was within the discretion of the court to call the cause for ■trial at any time during the term, a particular day not having been set for the trial.-Womack v. Bookman, 34 Ala. 38.

"With all the proceedings had during the term the appellants are conclusively presumed to have had notice, because the law •devolved on them the duty of being present, until, by some positive action of the court, the cause was disposed of, or a disposition thereof was made by agreement with the adverse party.-Speed v. Cocke, 57 Ala. 209. It was not without legal fault on the part of the appellants, that the judgment of which they complain was rendered against them. If they had exercised reasonable diligence, the diligence which the law exacts •of all suitors, the meritorious defense they now prefer, could have been made available, preventing the judgment. The want of such diligence is as fatal to their right to relief as would be the absence of a meritorious defense.

Affirmed.