Rogers v. Haines , 114 Ala. 50 ( 1896 )

McCLELLAN, J. —

The receiver not having been a party to the actions against the corporation while they were pending, and not now, final judgments having passed, being a party to the records, so to speak, in the cases, his remedy at law to set aside and vacate the judgments therein rendered by motion or common law certiorari is not plain, adequate and complete. When this case was formerly here, we said that it would not necessarily follow from the invalidity of the judgments in question and the right of the corporation itself to vacate them on certiorari, that the receiver had such right and, therefore, could not maintain this bill, but that the receiver, not being a party .to the actions, might not be let in to prosecute a certiorari to set aside the judgments. Rogers v. Haines, 103 Ala. 198, 203. In line with that suggestion, we now hold that he did not have such remedy at law as would preclude him to maintain a bill in equity to set aside said judgments.— Whittlesey v. Delaney, 73 N. Y. 571, 574; Tracy v. First Nat. Bank, 37 N. Y. 523.

The chancellor erred in sustaining the demurrer to the bill as amended and the motion to dismiss the bill. That decree is reversed, and a decree will be here entered overruling'the demurrer, and also overruling the motion to dismiss for want of equity.

Reversed and rendered.