Todd v. Leslie , 171 Ala. 624 ( 1911 )

MAYFIELD, J.

The bill in this case ivas by a defendant in judgment, against the plaintiff in judgment and the sheriff, to enjoin the execution of and to annul and cancel a judgment in ejectment taken by default, on the ground that the defendant was not served with process and had no notice or knowledge of the bringing, pendancy, or prosecution of the suit.

If the facts alleged in the bill are true, the defendant had a good defense to the action in ejectment; and hence it was sufficiently shown that he had a defense, and it was not necessary to allege the conclusion of law that such facts so alleged would constitute a legal defense to the action. It was better pleaded by stating the facts fully than by alleging a conclusion of law which necessarily followed from the facts so averred.

It was not n ecessary that the bill should acquit complainant of negligence in failing to move for a new trial in the' lower court under the four months statute. The remedy sought and awarded in this suit is concurrent with that afforded by the four months statute for new trials. Code 1907, § 5372. The statutory remedy is cumulative to that afforded by a bill in a court of chancery, and not exclusive of, nor a condition precedent to, similar relief to' be afforded by chancery courts. This subject was fully discussed and decided in the recent case of Evans v. White, 167 Ala. 587, 52 South. 845, 846. The bill, therefore, contained equity, and the demurrers were properly overruled.

The cause was submitted on pleadings, bill, answer, and demurrer, and on testimony taken and noted as required by the statutes and rules of practice, and the court granted the relief prayed. Prom the decree granting the relief, this appeal is taken.

The testimony as to whether or not there was any' service of process upon the defendant as to the ejectment suit, and as to whether or not he had any notice or knowledge of the suit, was directly in conflict; but we are not prepared to sa.y that the weight and preponderance of it was not in favor of complainant, or not in accordance with the finding of the chancellor.

Affirmed.

Simpson, McClelbian, and Sayre, JJ., concur.