Newman v. Taylor

Cooper, J., delivered the opinion of the court. The appellee, against whom a judgment at law had been rendered without notice, could have secured relief by motion in the law court, upon the trial of which it would only have devolved on him to show that no service of process had been made on him. Meyer Brothers v. Whitehead, 62 Miss., 387. Instead of resorting to the court of law, he has applied to chancery for relief, and, being in a court of equity, finds [673] himself subjected to the operation of the equitable maxim that “he who'seeks equity must do equity,” by reason of which, it was incumbent on him to show not only that the judgment at law was void, but that he has a good defense to the suit. Stewart v. Brooks, 62 Miss., 492. Under the old practice in chancery, the rule was to award a new trial at law, but since the extension of the power of relief in courts of law, this jurisdiction has become practically obsolete. 3 Pom. Eq., 1365. Courts of equity yet relieve against judgments-obtained by fraud, accident or mistake. This relief is not now by granting a new trial at law, but the court of equity will take full and final jurisdiction, so as to do complete justice between the parties. Hale v. Bozeman, 60 Miss., 965. The complainant was entitled to relief only upon condition of showing that he had a valid defense against the claim on which the judgment vTas rendered. This he failed to do, for it is not shown to have been within the apparent scope of the agency of Wilkinson, by whom the settlement of the debt was negotiated, or of that of Worms, by whom Wilkinson was directed to act, to bind the defendants, H. & C. Newman, by such settlement; nor is it shown that they subsequently were informed of and ratified the same. The complainant stopped a little short of proving his case; but, since injustice may be done by rendering a final decree here, we will remand the cause, with leave to all parties to take further proof. The decree is reversed, and cause remanded.