Kirkland v. C. D. Franke & Co.

GARDNER, J. This is a proceeding by appellant (petitioner in the court below) under section 5372 of the Code of 1907, seeking to have the judgment recovered against him in the court below set aside, upon the ground that he had been prevented from making his defense by surprise, accident, mistake, or fraud, without fault on his part. Petitioner relied upon a verbal statement, alleged to-have been made by counsel for plaintiff to M. C. Kirkland, his codefendant, to the effect that the cause would not be called for trial until the February term. The alleged agreement, not being in writing, and relating to the proceedings in the cause, comes within the influence of circuit court rule 14, Code 1907, p. 1520, and therefore constitutes no sufficient ground for relief. Brunnier v. Hill, 204 Ala. 403, 85 South. 691, and authorities there cited. Moreover, in cases of this character the petitioner must have shown himself to have been without fault, and must have exercised that degree of diligence required under the rule established by the decisions of this court. Hendley v, Chabert, 189 Ala. 258, 69 South. 993; Gray v. Handy, 204 Ala. 559, 86 South. 548. The petitioner alleges that he was an utter stranger to the'partnership being sued, and was without any connection whatever with this account. He rests his right to relief upon the conversation had with his co-defendant concerning a dispute as to one item of the account only. Though, under the conclusion above reached, it is unnecessary to, determine the question, yet it may be seriously questioned, under these circumstances, that petitioner has shown proper diligence and freedom from fault in resting reliance upon the restatement of this conversation to him by his codefendant, and omitting any effort to interpose a defense. Hendley v. Chabert, supra. The court below correctly ruled, and the judgment will be here affirmed. Affirmed. ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.