Shields v. Burns

BICE, C. J. — The application in this case was made within proper time; that is, “within four months from the rendition of the judgment.” It was tried upon the “ agreed facts ” set forth in the bill of exceptions, and must be here tried upon them. Looking alone to them, [537] it is doubtful, to say the least of it, whether any court could say that the defendant was “ prevented from making his defense, by surprise, accident, mistake, or fraud.” — Crawford v. Clute, 7 Ala. R. 157; Crawford v. Slade, 9 ib. 887. But, conceding that he was so prevented ; still that, of itself, is not sufficient to entitle him to a rehearing. He must, in addition to that, show that the prevention was “without fault on Ms part.” — White v. Ryan, at the present term, and authorities there cited. If he lost the opportunity of making his defense, by the neglect, inattention, or mistaken counsel of his own attorney, without any fraud or unfairness of the adverse party, it is, in law, as between Mm and the adverse party, the same thing as if he had lost it Dy his own neglect, inattention or fault. “For injuries resulting to clients, from negligence or inattention on the part of their attorneys, courts cannot give redress against the other party to the suit. Redress must be sought in a new action, against a new party.” — Henck v. Todhunter, 7 Har. & Johns. 275; Kent v. Ricards, 3 Maryland Chancery Decisions, 392; Lawson v. Bettison, 7 Eng. (Arkansas) Rep. 401; Barrow v. Jones, 1 J. J. Marsh. 440. The agreed facts do not show any sufficient excuse for the absence of the defendant and his attorney when the judgment complained of was rendered. As both of them were then absent, and no sufficient excuse is shown for the absence of both, we cannot say that one of them should not then have been present; nor can we say that the defendant was prevented from making his defense “without fault on his part.” And as we cannot say he is without fault, we are bound to decide, that he is not entitled to a rehearing of the original cause. — See authorities cited supra; also, Yancey v. Downer, 5 Litt. Rep. 8; Paynter v. Evans, 7 B. Monroe, 40; Saunders v. Fisher, 11 Ala. R. 812. As the case is presented by the agreed facts, we cannot know but that the defendant may have already answered as garnishee, and been discharged, or been put in a position of safety, as against the plaintiff in the garnishment. It does not even appear in the agreed facts, that the gar538 nisliment was served upon him before this suit was commenced. It.is clear, therefore, that the defendant is not entitled to have the judgment in the original cause set aside, and a rehearing gi’anted. "Whether he can show himself entitled to a stay of execution or other relief, under the decisions made in Crawford v. Clute, and Crawford v. Slade, supra, or under section 2406 of the Code, we can not decide in the existing state of the record. The circuit court erred, in setting aside the judgment in the original cause, and in quashing the execution upon the agreed facts. Its judgment is, therefore, reversed, and the cause remanded.