The question on this appeal is whether or not the Circuit Court, in Equity, committed error in sustaining demurrer to a bill of complaint having two aspects, one as a bill of review and another as an original bill in the nature of a bill of review. The demurrer is addressed to the bill as a whole. Our cases are clear to the effect that if in any aspect the bill sufficiently states a cause of action, the demurrer addressed to the bill as a whole should be overruled. Talbot v. Braswell, 266 Ala. 578, 98 So.2d 7; Ala.Digest, Equity. If, however, the bill, in both aspects, fails to state a good cause for equitable relief as against the grounds interposed, the demurrer was correctly sustained and the decree appealed from was not in error.
The complainants below, appellants here, seek to avoid a decree rendered by the Circuit
According to the averments of the bill of complaint now before us, the foreclosure decree under attack came to be entered in the following manner:
In December, 1954, the complainants, apparently husband and wife, engaged one Rast, also named as a respondent but apparently never brought into court in the instant suit, to make certain repairs and improvements on the suit property. The instant bill avers that the agreed price to be paid Rast was $1,196; that on December 27, 1954, Rast presented to complainants a document which Rast represented to be the agreed contract but which was in fact a proposal to do the work for $1,448 and that complainants rejected this proposal; that on January 10, 1955, Rast presented another document to complainants and represented to them that this second document contained the original agreement and that complainants executed this second document in reliance on said representations made to them by Rast; that in fact said second document was a mortgage on their above mentioned real estate securing a note for $2,048, and that complainants were caused to execute said mortgage by reason of fraud, deceit, trickery, and misrepresentations of Rast in representing that the document they executed was a simple agreement to make the repairs for the agreed price of $1,448; that upon discovery of the fraud thus practiced upon them by Rast, complainants employed an attorney of Mobile, Alabama, and through him on April 27, 1955, filed a bill of complaint in the Circuit Court of Mobile County, in Equity, praying for cancellation of said mortgage and for general relief; that Rast, the sole respondent to said bill, on May 30, 1955, filed a motion to strike himself as a party thereto on the ground that the mortgage had been transferred to Espalla, appellee on this appeal, prior to filing said bill of complaint on April 27, 1955, and that Rast disclaimed any interest in the suit property; that complainants' attorney on July 1, 1955, filed a motion to dismiss Rast's motion to strike himself; that while said motions were pending, Espalla, on June 2, 1955, filed an unverified motion to intervene in said suit and also filed a cross-bill; that the motion to intervene was granted June 13, 1955, and Espalla filed answer and cross-bill on July 6, 1955; that complainants were never served with process as to such intervention until June 7, 1956, but complainants' attorney filed an answer to Espalla's crossbill on July 14, 1955; that "* * * at some time intervening the filing of the motion by Respondent Rast to strike himself * * *" (which was May 30, 1955), and the hearing of said motion on December 5, 1955, complainants' attorney became ill and died on December 2, 1955, three days before Rast's motion to strike himself was granted; that during his illness and prior to his death, complainants' attorney was not able to attend to his affairs, and, "* * * having been made aware of the illness of their counsel * * *," complainants inquired of him and were informed that a second attorney, also of Mobile, having the same surname as but no kin to complainants' first attorney, was handling the affairs of the attorney who was ill, and, "Having been so advised, your Complainants took no further concern over any possible lack of representation and were under the impression that their interests were being protected * * *." by the second attorney; that on November 30, 1955, unknown to complainants, the Deputy Register "addressed" to the second attorney a letter advising that the case had "been passed continuously since June 6, 1955 * * *," and that "The Court will make some ruling on the above motions on December 5th,
The instant bill containing the aforesaid averments was filed June 22, 1956, by counsel who represents complainants on this appeal.
The appellee, Espalla, demurred and assigned grounds taking the points, among others, that the averments of the bill do not acquit complainants of negligence in their defense of the suit wherein relief is sought, and that it affirmatively appears that complainants were negligent in not ascertaining that the second attorney was representing them or if he was, then he was negligent. The demurrer was sustained and complainants bring this appeal. We will consider the sufficiency of the two aspects of the bill of complaint.
See also Nesbitt v. Hagan, 265 Ala. 213, 216, 217, 90 So.2d 217, 219, where it is said:
Complainants insist that the bill can be sustained as one of review for error apparent on the face of the record in the suit wherein the foreclosure decree of April 18, 1956, was rendered on the cross-bill of the intervenor and cross-complainant, Espalla, and argue two propositions to show such apparent error.
First, appellants insist that "When the Court granted the motion of Rast and struck him as a party Defendant, this in effect dismissed the bill and the dismissal carried with it the cross-bill of the intervenor Espalla since not founded upon an independent equity."
In Etowah Mining Co. v. Wills Valley Mining & Mfg. Co. (Ex parte Etowah Mining Co.) 121 Ala. 672, 675, 25 So. 720, 722, cited by appellants, this court said:
The cross-bill of Espalla to foreclose the mortgage is within the exception. We have said:
See also Wilson v. Crocker, 267 Ala. 26, 99 So.2d 190; Ala.Digest, Mortgages. Under the cited authorities, dismissal of the original bill did not dismiss the cross-bill, and appellants' first proposition as to error apparent is not well taken.
Appellants' second proposition is that error apparent is shown because Rast, the sole original respondent, was stricken and the cause proceeded to final decree in favor of the intervenor, Espalla, as respondent
The rule against working a complete change of parties respondent by amendment has no application here. Espalla came into the suit by intervention, not by amendment.
In holding that § 247, Title 7, Code 1940 (Code 1923, § 9485), applies in equity as well as at law the late Chief Justice Anderson wrote for the court as follows:
The remedy provided by this code section was said to be cumulative in Gipson v. Hyatt, 243 Ala. 118, 8 So.2d 926, and the relation of the statute to Equity Rule 37, Code 1940, Title 7 Appendix was noted in Rollins v. Deason, 263 Ala. 358, 82 So.2d 546.
As we have already undertaken to show, under the averments of appellants' bill in the instant case, Espalla, the intervenor and cross-complainant, asserted that he possessed an interest in the subject-matter of the complainants' former suit and sought to protect that interest by intervening in that suit. It appears from the averments of the bill in the record now before us, that under the statute Espalla had a right to do this, and as was said in Dodd v. Deepwater Coal & Iron Corporation, supra:
Appellants' second proposition to show error apparent is also without merit, and in its aspect as a bill of review the instant bill fails to state a cause for equitable relief.
"We entertain no sort of doubt that a court of equity may, in a proper case, upon proper averment and proof, grant relief from a decree rendered in an equity court to the same extent, and upon the same grounds, that relief could be had from a judgment at law, obtained by fraud, accident, or mistake, unmixed with negligence on the part of the defendant in the judgment." Barrow v. Lindsey, 230 Ala. 45, 47, 159 So. 232, 234.
Appellants do not base their right to relief on fraud in procurement of the decree of April 18, 1956, but argue that they were prevented from making their defense against that decree by "accident, surprise or mistake, without fault" on their part, and candidly state in brief:
Appellants recognize that under the holding in Barrow v. Lindsey, supra,
Appellants insist that in the instant case they have shown reasonable diligence in obtaining counsel and have bestowed on their suit the care and attention which a man of ordinary prudence usually bestows upon his important business. We do not agree.
In Barrow v. Lindsey, supra, as to complainants' prudence or lack of fault the averment was "That unknown to her, her attorney, * * * long prior to the expiration of said thirty days in which she was allowed to answer said bill, had become physically and mentally incompetent * * *."
In the instant case, the averments are that "at some time intervening the filing of the motion by Respondent Rast to strike himself" (motion to strike was filed May 30, 1955) "and December 5, 1955," complainants' first attorney became ill, that complainants learned of his illness, and did contact the second attorney. The bill fails to aver that complainants employed the second attorney but merely says they "were under the impression" he was representing them. In a suit which complainants themselves had started, the decree complained of was entered April 18, 1956, more than ten months after complainants' first attorney became ill, of which fact complainants had knowledge, and more than four months after his death.
Complainants either employed the second attorney or they did not. If they did not, then they were negligent in not employing counsel, or appearing for themselves as they had a right to do. Constitution of 1901, § 10; May v. Williams, 17 Ala. 23.
If, however, complainants did employ the second attorney, then he was negligent in not appearing and attending to the litigation of his employment. In that event, complainants are chargeable with the negligence of their attorney. Brown v. Brown, 213 Ala. 339, 105 So. 171; Ex parte Cox, 253 Ala. 647, 46 So.2d 417, and as a general rule mere negligence of an attorney is not sufficient to support the right of his client to equitable relief by bill in the nature of a bill of review, Long v. Long, 104 Ark. 562, 149 S.W. 662.
In the case at bar, negligence is imputable to complainants even if they did employ the second attorney. This court has said:
The bill is without merit in either aspect and the decree sustaining the demurrer is due to be affirmed.
All the Justices concur.