Powell v. Stewart

Citations

• 17 Ala. 719

Syllabus

<p>1. Where a party has availed himself in a court of law of a defence, which may be properly tried in that court, and failed fer want of proof, he cannot retry the same matter in a court of equity, without showing some special ground for its interference.</p> <p>2. Mutual accounts between the parties, if they are not complicated, do not furnish a sufficient ground for overhauling a judgment at law, — more especially, when they have been submitted to, and passed upon by the common law court.</p> <p>3. A eourt of equity will not relieve'against a judgment at law, on the ground, that a witness for the defendant did not testify on the'trial to material facts within his knowledge, and as to which he was not examined, where, by the exercise of proper diligence, the defendant could have ascertained what the witness knew, in reference to the matters in controversy.</p> <p>4. Where a defendant at Jaw desires a discovery from the plaintiff, he should file his bill, or exhibit interrogatories under the statute, whilst the cause is át issue. If without doing so, he take the chance of success in a trial at law, he must abide its judgment, unless some other speeial ground of relief is shown, authorising a resort to a court of equity.</p> <p>5. The death of the original counsel employed in the defence of a cause, and the want of familiarity, on the part of the counsel that succeeds him, with the grounds of defence, do not furnish a sufficient reason for the interference of a court of equity with the judgment at law.</p>