Pratt v. Keils

RICE, C. J. It may be conceded that, before the adoption of the Code, any court of record had the power, in certain cases, to vacate at a subsequent term a final judgment rendered by it at a previous term; and that this power has not been diminished by the Code. — Ex parte Sanford, 5 Ala. 562; Ex parte Weissinger, 7 ib. 710; Hood v. Br. Bk. Mobile, 9 ib. 335; Ex parte Crenshaw, 15 Peters’ Rep. 119; Reid v. Kelly, 1 Dev. Rep. 313; Austin v. Rodman, 1 Hawks, 71; Tisdale v. Gandy, 1 Hawks, 282. But it is certain that, be fore the Code became operative, a circuit court had no power to grant a new trial, or re-hearing, after the term had closed at which final judgment had been rendered by it, unless, during that term, a motion for a new trial or re-hearing had been made and continued. — Walker v. Hale, 16 Ala. 26; Fitzpatrick v. Hill, 9 ib. 783; Van Dyke v. The State, 22 ib. 57. In this respect, the Code has enlarged the power of the circuit court, and has authorized it to grant re-hearings in certain cases, on applications made after the term has closed at which final judgment was rendered. — Code, §§ 2407-2417. One class of those cases is, where a party has been prevented from making his defence by surprise, accident, mistake, or fraud, without fault on his part, and within four months from the rendition of the judgment applies for a re-hearing, by petition to a judge of the circuit court, stating the matter complained of, with a prayer for the appropriate relief, and swears to the facts stated in the petition, or yerifies them by a transcript of the record submitted with the petition. In the case at bar, the application for re-hearing was made within the time, and substantially in the mode, prescribed by the Code. The judge to whom the petition was addressed,. made the necessary order for a supersedeas, to restrain the enforcement of the execution; and at the term of the circuit court next thereafter, on motion made and proof submitted, [397] the final judgment rendered against the petitioners at the previous term was set aside, and an entry made, as of that term, continuing said case; and the execution was quashed, and the plaintiffs in the judgment were taxed with the costs of the issuing and supersedeas of the execution. From this judgment they appeal to this court. .The petition must be regarded as a new action, the object of which was to obtain a re-hearing and trial on the merits, in the original action, and to vacate the judgment which had been rendered in it; because, until that judgment was vacated, it stood in the way of such re-hearing and trial on the merits. Shearer v. Boyd, 10 Ala. 279. The petition was sworn to, and stated that the petitioners had a valid legal defence to the original action, — that they had employed counsel to represent them; that an appearance was entered for them in said action, by said counsel, before the calling of the docket of said circuit court; that their defence was regularly drawn out in. pleas, which were filed, and endorsed by the clerk as filed; that after the filing of their pleas, the case was called, and the pleas submitted to the court, and objected to by the plaintiffs’ attorneys, who there-, upon demanded a judgment for the plaintiffs, which the court refused; that afterwards the judgment was entered by mistake, &c. The facts stated in the petition clearly show the mistake, and that the'entry of the judgment was without any fault of the petitioners, and that it did and will deprive them of making their defence, if it is not vacated. The erddence submitted on the trial of the motion made by the petitioners, proves all the matters and facts stated in the petition, except the validity of their defence. And the question thereupon arises, Was it essential, to entitle them tcf a re-hearing in the original action, that they should, on the application for it, prove that their pleas on -file were actually true, and that they ought to prevail as a defence. Our opinion is, that it was not the design of the legislature, in adopting the sections of the Code above referred to, to compel defendants, who had filed pleas legally sufficient, but who had been deprived of the opportunity of establishing their truth in the original action, by mistake, without fault on their part, to prove the truth of those pleas in two distinct [398] suits with'the same plaintiffs. It could not have been designed to require defendants, in such cases as the present, (where they were deprived of all opportunity to make their defence,) to prove the truth of their pleas, in order to obtain a re-hearing in the original suit, and then, after obtaining a re-hearing, to prove again the truth of the same pleas on the trial of the original suit. In such cases, the truth of the pleas filed to the original action is not a matter to be tried under the petition for re-hearing; but the trial under the petition must be confined to “ the matter complained of” by the petitioners — that is, to the facts alleged in the petition, which, in legal contemplation, constitute the “ surprise, mistake, accident, or fraud,” which, without fault on the part of the petitioners, prevented them from making their defence. The petition is not the re-hearing, but the mere application for it.. Whenever it appears from the petition and proof, that pleas, legally sufficient, have been filed to the original action; that facts exist which, in legal contemplation, constitute “surprise, accident,mistake, or fraud;” and that by such surprise, accident, mistake or fraud the petitioners were prevented from making their defence, or deprived of the opportunity of proving the truth of their pleas, without fault on their part, the petitioners are entitled to a re-hearing of the original action, and to be let in to make their defence or prove the truth of their pleas. — N. E. Mutual Ins. Co. v. Lisbon Man. Co., 2 Foster’s Rep. 170; Edmonson v. Popkin, 1 Bos. & Pul. 270; Hindle v. O’Brien, 1 Taunton, 413. The plaintiffs in the judgment can always dispense with a trial of the facts alleged in the petition, by. consenting that there may be a re-hearing and trial of the original cause at the first term after the granting of the order for a supersedeas. If, however, they insist on trying the facts alleged in the petition, they cannot, in such a case as the present, require of the petitioners, on the trial under the petition, to prove either that the pleas filed in the original action are true in fact, or that the defence set forth in those pleas might to prevail Where a trial of the facts stated in the petition is had, and finally results adversely to the petitioners, they cannot have a re-hearing of the original cause. But, where such trial results in favor of the petitioners, the proper judgment is, that [399] the judgment rendered in the original action be vacated; that the execution issued under it be quashed; that a rehearing be granted in the original action; that the petitioners be let in to make their defence in that action; and that they recover of the plaintiffs in that judgment the costs which ■ have accrued under the petition for the re-h’earing. To such a judgment, the petitioners in the present case are entitled under their petition and proof. They have obtained it in substance, but not in form. It must here be corrected, and made to conform to what we have indicated it should have been; and being thus corrected, it must be affirmed, at the costs of the appellants. The motion made by the petitioners, at the term next after they obtained the order for a supersedeas, to correct the judgment entry,.or to set it aside, was -unnecessary. The petition itself was a sufficient motion to set aside or vacate the judgment, and for a re-hearing. It seems so to have been understood by both parties, for the depositions taken under the petition, before the motion was made in court, were used without any objection founded on the fact that they were, taken before the motion was made. It is clear from the record, that no injury resulted to the appellants from the making of that motion, and that the action of the court may be referred to and sustained under the petition; and, therefore, it is right to correct and affirm the judgment, — distinctly making it a judgment founded on the petition.