Kanape v. Reeves

TYSON, J. This bill was filed for the purpose of enjoining a judgment at law. The facts as alleged upon which the equities of the bill are predicated are these: On the day of the term of court on which the judgment was rendered complainant was sick and had been for some time prior thereto. In consequence of this illness she was unable to employ counsel to represent her. So she procured her husband, who is not a laAvyer, to attend each day’s sitting of the court for the purpose of making application for a continuance of the case, having with him a certificate of her physician as to her physical condition. He remained in the court room during the day on which, under the law, the case was to be ■called, until late in the afternoon. After dark on that day and while the court was trying another cause, the husband left tlie court room and went to a place on the steps leading into the court house, within calling distance of the court room, where he remained until the court adjourned for the day. While there, the court called the case and the judgment sought to be enjoined was taken by default against her. It is averred that this judgment was entered by the court, without first having her called from the door of the court room. Also that the suit was upon a promissory note given by the complainant for the debt of her husband. It is further alleged in the bill that her husband prior to the term of court at which the judgment was rendered had spoken to an attorney in regard to the suit, and had agreed upon the terms upon which he, would be em [220] ployed in case the snit came to a trial, but did not actually employ him. The principle invoked by the complainant is that where a party has been deprived in a court of law of presenting a valid defense.to an-action'therein, by surprise, accident, mistake, or fraud on the part of the adversary, unmixed with negligence on his part, he will be afforded relief in a court of equity. It i-s conceded by complainant’s counsel that her sickness -did not -excuse her from attending upon the court and having her defense interposed, or a proper application made for a continuance of the cause. The contention is that she was in court at the proper time, in the person of her agent, that this constituted an appearance; and the failure of the court to have her called at the door before entering the judgment acquits her of all negligence. No appearance as a fact is averred. The presence of her husband in the court room cannot be so construed. He, not being a licensed attorney,, was wholly without authority to appear for her, whatever may have been his authority in respect to acting for and representing her in other matters. This she and her husband knew or were bound to have known. Had he attempted to file -a plea for her as agent or to-have represented her in the cause upon an application for a continuance, the court would-doubtless, and very properly, have refused to permit the plea to be filed or-to hear the application. Nor would such refusal have-involved an impairment of her constitutional right to defend the -action either by herself -or by counsel. The principle qui faeit per alium facit per se has no application to the right of the complainant to appear for-herself in her own defense through an agent who is not a licensed' attorney. But aside from this, her agent was not in the court room when the case was called. There-is no statute -or rule of practice which requires the trial court to have a defendant called at the -door of the court house before entering judgment by default. The court was, therefore, under no duty to have the complainant or her husband'called at the door of the court room before rendering the judgment against her. The [221] failure on her part to have her application for a continuance presented or to have an attorney appear for the purpose of interposing her defense is directly attributable to the negligence of her husband, to whom she entrusted these matters. The demurrer to the bill should have been sustained. — Owen v. Gerson, 119 Ala. 217; Campbell v. White, 77 Ala. 397; Pharr v. Reynolds, 3 Ala. 521. The chancellor not only rendered a decree overruling the demurrer to the bill, but denied the motion to dissolve the injunction upon the sworn denials -contained in the answer. In this there was an error. A decree will be here rendered reversing the decree and sustaining the demurrer to the bill and also dissolving the injunction. Reversed and rendered.