
    Eady v. Napier, Worsham & Company.
   Simmons, C. J.

1. The fact that the plaintiffs’ attorney, after a case had been continued in a justice’s court, merely informed the defendants that the case would not be tried that day but would be tried the next month, is no cause for setting aside a judgment rendered against the defendants by default at the next term, although they were ignorant and uneducated persons and thought that they would be summoned again when wanted, or would receive further notice of the time and place of trial.

March 11, 1895.

Argued at the last term.

Equitable petition. Before Judge Honey. Bibb superior court. April term, 1894.

On January 6, 1892, Tom Eady bought a mule from •defendants at $150, for which be gave them, bis notes for $75 each, due November 1, 1892, secured by mortgage on the mule and a wagon. Jeff’ Eady signed the notes as surety. A few days before they fell due, Tom ■returned the mule to defendants and delivered them the wagon in payment for the use of the mule. No price was agreed on for the mule and wagon, but he was given a receipt therefor, with the understanding that they would surrender him the notes when he paid them an additional note of $30 which he owed them for supplies, but whicb was not covered by the mortgage nor signed by Jeff'. Early in 1893 suits were brought on the two $75 notes, in the 716th district G-. M. The Eadys lived in the 481st district. They appeared in answer to the summons, and upon being questioned by the justice, were told to go, which they did. Then suits were brought in the 481st district, to the August term, 1893. The Eadys appeared in response to the summons, bringing the receipt from defendants, which they claimed was given in full satisfaction, although it recited that the mule and wagon were received on account. Neither of them owed defendants any account. Jeff owed them nothing and Tom owed them only the $30 note. 0.n this latter occasion they had no conversation with the justice, but defendants’ (then plaintiffs’) attorney asked Tom if he was going to let him have judgment on the notes. Tom i’eplied that he did not know what to do, as he had nothing and had returned the mule and given the wagon for the rent of it, the mule, and owed nothing. The attorney then told him the case would not be tried that day and he could go; that the case would be tided next month. The Eadys then went home. They were ignorant and illiterate, were never sued before, and believed they would be summoned again when wanted. They had no lawyer. They were not present at the next term, when judgments were rendered against them for $150, and did not know of it until the levy was made. The mule when returned was worth $50 more than when purchased, being in much better condition. This petition was brought for injunction, to prevent a multiplicity of suits, and for an equitable set-off; alleging that in equity the proceeds of the mule and wagon should go to pay the debt; that the judgments were obtained by accident, mistake and fraud, without laches on the part of petitioners, etc. They prayed, that the value of the mule and wagon, which was $230, be applied to the payment of the debt; for judgment against defendants for the difference in value, and for attorney’s fees; that the judgments be set aside; that the notes and mortgage be cancelled; and for general relief. Defendants moved for a nonsuit. The court held, that while plaintiffs might recover the property in an independent action for its value, the only ground on which any cause for equitable relief was set out was the allegation of fraud, which not being sustained by the proof, the whole case must fall; and thereupon a verdict for defendants was directed.

2. The trial judge was right in adjudging that the evidence introduced in support of the plaintiffs’ petition did not make a case entitling them to equitable relief; and as there was in the petition no prayer for relief of any other kind, the action could not be treated as one in which relief of a purely legal nature could be granted to either plaintiff. The question whether or not, upon the facts proved, the plaintiff who delivered to the defendants the property described in the petition could in a proper action recover the same or its value; was not adjudicated by the trial court, and is not now for decision by this court.

■'3. On the pleadings and evidence as they stood, there was nothing for submission to the jury, and the motion for a nonsuit ought to have been granted; but it was error to direct a verdict for the defendants. Inasmuch, however, as the plaintiffs could in no event recover in the present action, this error does not require a reversal of the judgment below; but direction is given that the same shall not be so construed as to estop the plaintiff above indicated from bringing another action in which the real merits of his case, if any there be, can be set forth and passed upon.

Judgment affirmed, with direction.

Plaintiffs excepted.

James A. Thomas, for plaintiffs.

John R. L. Smith, for defendants.  