LAWYERS' REPORTS,

ANNOTATED.

KENTUCKY COURT OF APPEALS.

And reliance on a codefendant's promises to defend will not authorize an injunction, where such codefendant was an attorney, but no retainer | was paid, and he made a defense for both, and nearly two years afterwards such suit was dis-nesses, and will not be there, will prevent an missed as to the attorney, and judgment taken against the complainant. Bardonski v. Bardonski, 144 Ill. 284.

wise, and that the execution sought to be en- | and, as such, has directed parties indebted joined was issued on a judgment rendered in an action at law brought by appellee against him on this accepted order. It is further al leged that he had not, at the time said suit was brought, nor at any time after the acceptance of the order, any money or assets belonging to the estate of said Burks in his hands, with which to pay said order or any part thereof; that upon being served with process in the action he went to Glasgow, and laid these facts, together with the fact that he was in no way individually liable on said claim, before a practicing attorney of that bar, whom he requested to prepare and file an answer for him in the action, and who promised and agreed to do so; that, supposing that this would be done, and supposing that the action would thereupon stand continued for that term, he then returned to his home in Hart county, Ky., but that, for some reason unknown to him, the said at torney failed to file the answer or make defense for him, and the appellee wrongfully and fraudulently took the judgment against him on which the execution sought to be enjoined was issued. The petition further charges that Lewis McQuown, who, as administrator of W. H. Botts, deceased, is appellee herein, and who recovered said judgment against appellant, is also the attorney for the estate of said John Burks, deceased,

up as a defense, an injunction was refused against the judgment, although the defendants being in default supposed the judgment had been entered before the discharge as they could have compelled the plaintiff to take his judgment in due course, and have no right to complain of the result of their own negligence. Bellamy v. Woodson, 4 Ga. 175, 48 Am. Dec. 221. But see next case.

But in Carrington v. Holabird, 17 Conn. 530, where a party supposed a judgment was taken against him, and failed to make any defense, but obtained his discharge in bankruptcy thereafter, when in fact a judgment was obtained out of the usual course at the ensuing term after discharge in bankruptcy, an injunction was granted.

to said estate not to pay their indebtedness to appellant, but to pay to another; and that, in consequence thereof, appellant will never be able to collect anything more belonging to said estate, or to pay the demand of appellee; and concluded with the usual averments that, unless an injunction be issued, his individual property will be levied on and sold, and he will be subjected to great, irreparable loss and injury. On the day on which this petition was filed, to wit, August 24, 1893, and without notice to appellee, an order of injunction was entered, and an injunction as prayed for was issued, restraining the sheriff from levying said execution on the property of appellant, and from taking any further steps thereunder, until the further order of the court, which was in due time executed upon said sheriff. At the succeeding term of the court-not, however, on the third day of the term, which commenced on the third Monday in November, but on the 13th day of December, 1893-appellee filed an answer controverting all the allegations of the petition, and pleading affirmatively the facts attending the giving of the order on appellant by Mr. Burks, and its acceptance by appellant. That order, with the acceptance thereon, is made a part of the answer, and shows on its face that it was drawn on appellant and accepted by him individ

died, and the other suffered judgment by default, there was such negligence as prevents an injunction. Walker v. Kretsinger, 48 Ill. 502.

And writing to a lawyer to defend, where the party is himself absent from court, will not excuse negligence in not making a defense. Cabell v. Roberts, 6 Rand. (Va.) 580.

So, negligence of a defendant in preparing for his trial, or in employing counsel, or in summoning witnesses, will prevent an injunction, although he may have had a good excuse for not being present himself at the time of the judgment. McCollum v. Prewitt, 37 Ala. 573, 1 Ala. Sel. Cas. 498.

The negligence of a messenger from defendant in not delivering a copy of the summons until the And the failure of complainant or his counsel to time for answer expired, to an attorney for the be present at the trial at law, solely because a wit- defendant with instructions to appear and plead ness was absent, is not such negligence as will pre-payment, where default was taken a year afterclude an injunction against the judgment, where in the equity case the defendants do not object to the jurisdiction, and admit the equity of complainant. Vanlew v. Bohannan, 4 Rand. (Va.) 537.

As to absence from court, see Cammann v. Traphagan, Smith v. Lowry, and Sasser v. Olliff, supra, I.; and Cabell v. Roberts, infra, II., b.

As to absence from court, see also note on Injunctions against judgments obtained by fraud, accident, mistake, surprise, and duress, to Merriman v. Walton (Cal.) 30 L. R. A. 786.

b. In employing an attorney.

The inexcusable negligence of complainant in employing an attorney to attend to the case will prevent an injunction against the judgment.

ward, will prevent relief by injunction against a judgment. Sullivan v. Shell, 36 S. C. 578.

And an injunction was not granted against a decree where defendant was negligent, and merely wrote to a lawyer to defend him, without giving any information, and the deposition of the lawyer was not taken, and the letter was not produced. Hill v. Bowyer, 18 Gratt. 364.

The negligence of defendant in not furnishing his attorney with full information of a suit that he believed was pending, where the attorney could not find the case, and the clerk informed him that no such case was pending, and the complainant bad information between terms of the court sufficient to cause a full investigation, will prevent an injunction against the same, although he was prevented from attending court by the danger inciden

Robinson, 11 Heisk. 391.

So, negligence in not employing counsel will prevent an injunction against a judgment. Lan-tal to reorganizing courts after the war. Prater v. drum v. Farmer, 7 Bush, 46; Waldrom v. Waldrom, 76 Ala. 285; Kelleher v. Boden, 55 Mich. 295; Dwight v. Richards, 4 La. Ann. 240; Duncan v. Gibson, 45 Mo. 352; Watts v. Gayle, 20 Ala. 817.

Where a member of a partnership asked attorneys to defend a case, but gave no facts or names of witnesses to establish the defense, and such partner,

And negligence of complainant in examining the summons and complaint, and his failure to show the same to his attorney, will prevent an injunction against the judgment, where there is no charge of fraud on the part of the prevailing praty. Slappey v. Hodge Bros. 99 Ala. 300.

ually, and without qualification as to the know that an answer had been filed at the manner in which or the fund from which it time the order of submission was entered. was to be paid. No motion was made to It is true that one of these affiants says "that dissolve the injunction; no reply was filed if he was present in court on the day said or offered to be filed to this answer; no proof answer was offered and filed, that he did not was taken by either party; but, at the next hear said motion, and said answer was not term of the court, to wit, on March 12, 1894, in the papers of said suit when the Novemit appears, singularly enough, in view of ber term ended;" but he does not say how the state of the record, that the action was he knows this, or that he ever inquired for submitted for judgment, on motion of appel- or looked at the papers of the case to see lant. On the next day, March 13, 1894, ap- whether or not an answer had been filed. pellant moved to set aside the order of sub- The other affiant says that he was detained mission, and in support of that motion filed from court by sickness during several days the separate affidavits of the two attorneys of the November term, but that, "in a few who were representing him in the case. On days after said last term," he looked through the 17th day of March the court below over the papers in the suit, and that there was ruled this motion to set aside the submis- then no answer among them. This must have sion, dismissed appellant's petition, and dis- been in December, and he does not pretend solved the injunction, with damages at the ever to have made any further investigation, rate of 10 per cent on the amount of the ex- though nothing further was done in the case ecution enjoined and costs, and from that until the 12th day of March following, when judgment this appeal is prosecuted. the case was submitted for judgment, either on his motion or the motion of his partner. Both affiants lay much stress on the fact that appellee's answer was due on the third day of the November term, and that no order was made extending the time for filing same. But it is not pretended that any agreement was made that none should be filed at a later

The principal question to be considered is whether or not the motion to set aside the order of submission was properly overruled. The statements of the affidavits of counsel, filed in support of this motion, practically amount to but little more than the statement of each of these gentlemen that he did not

For negligence in employing an attorney, see George V. Tutt, supra, II., a.

For cases in regard to employment of attorney, see note on Injunctions against judgments obtained by fraud, accident, mistake, surprise, and duress, to Merriman v. Walton (Cal.) 30 L. R. A. 786.

c. Of attorney.

The negligence of an attorney is considered the negligence of his client, and where the defense was not made on account of the negligence of the attorney for complainant, and a good excuse is not shown, the complainant will not be entitled to an injunction against the judgment.

And negligence, in not obtaining a continuance, by an attorney who was sick, will prevent an injunction. Pharr v. Reynolds, 3 Ala. 521.

Or negligence in not informing his client that he could not attend to the case. Clark v. Ewing, 93 Ill. 572; Griffith v. Thompson, 4 Gratt. 147.

Where complainant's counsel was furnished with a copy of the writ, but took no trouble to inquire in what court the suit was brought, and did not read the writ, but carelessly placed it with papers belonging to another court, and never thought of it until after judgment, an injunction was not granted. Ayres v. Morehead, 77 Va. 586.

And where complainant's attorney by oversight That a judgment is against good conscience will | "failed to enter an appearance," and for more than not authorize an injunction, where, through fault a year after judgment had been rendered the comof complainant or his attorney, defense was not in-plainant and his attorney neglected to make any terposed in proper time. Shricker v. Field, 9 Iowa, inquiry about the action, an injunction was re366. fused. Amherst College v. Allen (Mass.) 42 N. E. 570.

So, where an attorney who was irresponsible had neglected and failed to make a defense that could have been made at law, proceedings on the judgment were not enjoined. Kern v. Strausberger, 71 Ill. 413.

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Negligence in not procuring a bill of exceptions, or in employing an attorney who could be relied upon, where complainant was unavoidably detained from court, will prevent an injunction against proceedings on a judgment. Ballance v. Loomiss, 22 Ill. 82.

And an injunction was not granted against a judgment against W. as a member of the firm of B. & Co. where his lawyer made no defense, and So, the negligence of an attorney in not perfectwas negligent in not ascertaining what members of ing the record for the appellate court, or in not the firm were parties defendant, though he had taking an appeal in the proper time or manner, been notified that such a suit was pending, and the will prevent an injunction against the judgment. client W. had a good defense, and lived in the Galbraith v. Barnard, 21 Or. 67; Ballance v. Loomiss, county, where it did not appear that he had fur-supra; Augusta Mut. L. Asso. v. McAndrew, 63 Ga. nished his counsel with a copy of the summons, and he would have had to verify his plea. Wallace v. Richmond, 26 Gratt. 67.

And the negligence of complainant's counsel in filing a frivolous demurrer, and absenting himself from trial, will prevent an injunction against the judgment. Borland v. Thornton, 12 Cal. 440.

490; Miller v. Berneckes, 46 Mo. 194; Smith v. Fouche, 55 Ga. 120; Holman v. G. A. Stowers Furniture Co. (Tex.) 30 S. W. 1120; Ruppertsberger v. Clark, 53 Md. 402; Musgrove v. Chambers, 12 Tex. 32; Bowman v. Field, 11 Mo. App. 594; Watt v. Cobb, 32 Ala. 530; Robbins v. Mount, 3 Ga. 74; Palmer v. Gardiner, 77 Ill. 143; Dibble v. Truluck, 12 Fla. 185. See also note to Little Rock & Ft. S. R. Co. v. Wells (Ark.) 30 L. R. A. 560, Injunctions against judgments for matters arising subsequent to their rendition.

So, negligence of complainant's attorney in not prosecuting a suit of replevin will prevent an injunction against the judgment, where complainant was himself guilty of negligence, and did not attend court or have any witness there, and there was no fraud on the part of the opposite party. | ing the judgment. Albro v. Dayton, 28 Ill. 325.

In Morgan's Appeal, 110 Pa. 271, it was said that negligence in appealing cannot be cured by enjoin

Or negligence in not asserting the remedy of mo

day in the term, nor does it appear that ap-, of a reasonable discretion, have refused to pellant or his counsel were in any way led set aside the order of submission. to believe that none would be filed; but, on the contrary, it does appear that this answer was filed, without objection, in open court, on the 13th day of December, at that same term of court. One of appellant's counsel says in his affidavit that he is informed that his client is at that time at home with a sick wife, and this may account in some measure for the fact that, although counsel discovered on March 13 that the answer had been filed, and the motion to set aside the order of submission was not considered until March 17, yet no reply controverting the allegations of the answer was tendered or filed, and no proof offered to sustain the averments of the petition. But, however this may be, we are unable to find anything in either of these affidavits sufficient to explain or overcome the fact that this answer was allowed to remain in the record uncontroverted from December 13, 1893, or to rebut the conclusion that, by the exercise of ordinary diligence, counsel could and would have discovered this fact before they voluntarily entered the order of submission on March 12, 1894. Upon these considerations alone, it seems to us that the chancellor might, as he did, in the exercise

tion for a new trial. French v. Garner, 7 Port. (Ala.) 549; Phelps v. Peabody, 7 Cal. 50.

Or in not asserting the remedy of motion to set aside the judgment. Gulf, C. & S. F. R. Co. v. Henderson, 83 Tex. 70; Smith v. Powell, 50 Ill. 21.

Or in not prosecuting a writ of error. Rogers v. Kingsbury, 22 Ga. 60.

d. In ascertaining a defense.

The negligence of complainant or his attorney in failing to use reasonable diligence to ascertain his defense will prevent an injunction against the judgment.

So, negligence in ascertaining defense will prevent an injunction against the judgment. Governor v. Barrow, 13 Ala. 540; Goldsmith v. Stetson, 39 Ala. 183; Stetson v. Goldsmith, 31 Ala. 649; Wixom v. Davis, Walk. Ch. (Mich.) 15; Garrett v. Lynch, 45 Ala. 204; Williams v. Lockwood, Clarke, Ch. 172; Headley v. Bell, 84 Ala. 346; Taliaferro v. Branch Bank, 23 Ala. 755; Skinner v. 'Deming, 2 Ind. 558, 54 Am. Dec. 463: Perrine v. Carlisle, 19 Ala. 686; Lee v. Insurance Bank, 2 Ala. 21; Hinrichsen v. Van Winkle, 27 Ill. 334; Harrison v. Crumb, 1 Tex. App. Civ. Cas. (White & W.) 991; Smith v. Powell, 50 Ill. 21; Dilly v. Barnard, 8 Gill & J. 170; Cheyney v. Wright, 7 Phila. 431; Stinnett v. Branch Bank, 9 Ala. 120.

And negligence in not discovering mistakes in the statement of a partnership account, which showed the judgment to be unjust, where complainant had free access to the books, will prevent an injunction against proceedings on a judgment, as such a case presents gross negligence. Palmer v. Bethard, 66 Ill. 529.

That the complainant did not have time to examine books when they were produced at the trial of the action at law will not entitle to an injunction, as he should have applied to the court for further time for this purpose, which would doubtless have been granted if the facts and circumstances had warranted it. Hines v. Beers, 76 Ga. 9.

A party who neglects to examine the note upon which he is sued, and to avail himself of all proper credits when he had the opportunity to do so, cannot have the judgment enjoined. Jarboe v. Kepler, 4 Ind. 177.

But, in support of the action of the court below in overruling this motion and dismissing the petition, another very potent consideration is found in the fact that the grounds, as set forth in the petition on which this injunction was asked, are insufficient to justify it. We are aware that this could, and perhaps should, properly have been taken advantage of by a motion to dissolve the injunction, and that no such motion was made; but still it is not to be entirely excluded on this motion, made after the entire case had been submitted for judgment. This injunction was asked, as above stated, against a common-law judgment, on the ground that appellant had requested an attorney, to whom he had submitted the facts constituting his defense, to prepare an answer for him; that he had relied upon this attorney's promise to do so, and had gone to his home in another county, supposing that his answer would be filed, and the case be continued, but that, for some reason unknown to him, the attorney had failed to file the answer. This, in our opinion, is wholly insufficient to entitle appellant to relief by injunction against a judg ment by default rendered against him under

So, an injunction will not be granted against a judgment, where the complainant has been guilty of negligence in not knowing on what note he had been sued, and does not tell what pleas he made. Head v. Pitzer, 1 Mo. 548.

And the failure to use diligence to ascertain the consideration of the note sued upon will prevent an injunction against proceedings on a judgment, where there is no reason or excuse given for not ascertaining the same in time. Miller v. Gaskins, Smedes & M. Ch. 524.

And a surety will not be entitled to an injunction against a judgment on a note, where one of the names has been erased with a pen, and he claims that he would not have signed the note without such other party on it, and that he was ignorant of the erasure, although the note was presented at the trial, as his negligence will bar an injunction. Shelmire v. Thompson, 2 Blackf. 270.

Gross negligence in not searching the records to ascertain a defense will prevent equitable relief. Vaughn v. Johnson, 9 N. J. Eq. 173.

A defendant who claimed that he was not the party named in the process, but swore to an affidavit of defense without knowing what it contained, was guilty of negligence and is not entitled to an injunction. Burke v. Gibson, 6 Kulp, 310.

Where complainant was guilty of negligence and made no effort to prepare for the trial, an injunction will not be granted. Kriechbaum v. Bridges, 1 Iowa, 14.

And a judgment will not be enjoined on the ground of ignorance of a defense, where the same was mixed with negligence. Lebanon Mut. Ins. Co. v. Erb, 16 W. N. C. 113.

And the failure of a defendant to remember a fact which would have been a complete defense on a motion for summary judgment will not be ground for enjoining the judgment, as this is not fraud of the opposite party or such mistake as will be relieved against. Bailey v. Anderson, 6 Humph. 149.

Delay in filing a bill of interpleader setting up that, owing to the absence of one of the defendants, who left for a foreign country after service of process, it was not discovered until after judgment that the plaintiff at law was not the party entitled to the judgment, is fatal to an application for an