Prowell v. Wilson , 219 Ala. 645 ( 1929 )

On Rehearing. As pointed out in the foregoing opinion, appellant in argument and brief on submission limited the questions to be considered to the sufficiency of the pleas and "matters andthings material and relevant to the proof or disproof of thepleas."

One of appellant's contentions now is that plea 2 was intended to go to paragraph 11 of the bill as amended, and, through typographical error or error of the stenographer, it was in fact addressed to paragraph 2 of the bill as amended; but notwithstanding this fact the parties treated the plea as denying said paragraph 11.

If this contention was conceded and the plea treated as putting in issue the averments of paragraph 11, imposing on the complainant the burden of proving this paragraph, and if it be further conceded that complainant has failed to sustain the averments of paragraph 11, still paragraphs 12 and 13 of the bill as amended, confessed by the pleas, show fraud in the procurement of the alleged settlement sufficient to avoid the settlement and entitle the complainant to relief.

Another contention of the appellant, made for the first time on rehearing, is that there is no footnote on the several amendments made to the bill requiring an answer. We are of opinion that the defendant waived this defect by failing to take the objection in the trial court, and by pleading to the bill as amended.

Another contention is that it appears from the record that the court considered the case as though the averments of the bill were denied, and the case should be so treated here.

This contention is answered by the statement in the brief filed on submission of the case in the trial court and the recitals in the decrees of the court. In brief submitted to the trial court, which has been copied in the record, we find this statement by counsel for the respondent in respect to the questions to be considered by the chancellor: "We do not deem it necessary to state here the issues raised by the bill of complaint, as amended, and respondent's several pleas. All of these are part of the record and the submission of the case is made upon them as well as the testimony and other documentary evidence introduced. It is to be borne in mind, however, that this submission relates strictly to the proof of respondent's pleas, which, if they are good, unquestionably constitute a bar to the complainant's suit, and only the matters and things material and relevant tothe proof or disproof of the pleas are properly to beconsidered on the issues under the pleadings."

The decree of September 20, 1927, recites that: "This cause coming on to be heard on the pleas of respondent, filed to the bill of complaint, and the proof in support and against the same as noted by the register, the Court has carefully considered the same, together with able brief filed by the respective solicitors. * * * It is ordered, adjudged and decreed by the Court that the pleas of the defendant interposed to the bill as last amended, together with the proof offered in support thereof, do not constitute a defense to the same, and that said pleas be and the same are hereby overruled. It is further ordered, adjudged and decreed by the Court that respondent be and he is hereby allowed thirty days in which to answer the bill of complaint."

The respondent failed to avail himself of the right to file an answer, and the final decree contains the following recital:

"In this case a decree was rendered on the 20th day of September, 1927, overruling respondent's pleas and allowing respondent thirty days within which to answer the bill. Solicitors for both respondent and complainant have stated to the Court that in their opinion the decree should have gone to the merits of the case, and have requested the Court to render a final decree herein, and upon considering said request and the agreement of the solicitors for both respondent and complainant, the Court is of opinion that it will be to the best interest of the parties hereto to render a final decree in accordance with the request and agreement of the solicitors of the respective parties thereto.

"This cause coming on for further consideration upon the pleadings and proof submitted hereunder, and noted by the register, the Court has carefully considered the same, and respondent's pleas having been heretofore overruled by the Court on the grounds set forth in said decree, the Court is of opinion that the complainant is entitled to the relief prayed for in his bill of complaint as amended."

These recitals show conclusively that the respondent relied on defenses asserted in the several pleas, and no other and that these were the only matters considered and adjudged by the court. The further recitals in the final decree as to the merits of the controversy, other than the ascertainment of the amount complainant was entitled to recover, may well be referred to the confessed averments of the bill, and though the averments of the bill, as confessed, would have justified a decree for a greater amount than complainant was allowed to recover, the appellant cannot complain that the court looked to the respondent's answers to the interrogatories to fix the amount, less than the amount shown by the averments of the bill, as confessed by the pleas.

It is further suggested in argument that the integrity of counsel who drew the agreement of settlement is involved in the issues presented on this appeal. This suggestion is fully answered by the fact that there is not the slightest suggestion in the averments of the bill that they were guilty of fraud or deception, and the result depends here, as it did in the court below, on the averments of the bill as confessed by the pleas.

In disposing of the case, the court has confined its consideration to the issues of law and fact as presented on the record, and the result heretofore announced is inescapable, unless the law and science of pleading, so essential to the administration of the justice in the court, be wholly disregarded. Woodward Iron Co. v. Marbut, 183 Ala. 310,62 So. 804; 2 Hughes on Prop. 474; T. C., I. R. Co. v. Smith, 171 Ala. 251,55 So. 170.

The application for rehearing must therefore be overruled.

Overruled.

ANDERSON, C. J., and THOMAS and FOSTER, JJ., concur.