
    Owen v. Gerson.
    
      Bill in Equity to Enjoin Judgment at Law.
    
    1. Dismissal of Mil for want of equity. — On a motion to dismiss a bill for want of equity, the inquiry is whether the bill, considering all amendable defects as having been cured by amendment, contains equity — whether in the absence of demurrer the averments are sufficient to support a decree pro eonfesso and final decree granting relief.
    2. Insolvency of plaintiff in judgment as ground for injunction and set-off in equity; excuse for not defending at law; when sufficient in absence of demurrer. — A/Vhile insolvency alone of the plaintiff in a judgment at law may not be a sufficient ground for resort by defendant to a court of equity to set off a demand which could have been made available as a defense in the action at law; and while an averment merely that no defense was made at law because of the continued sickness of complainants is obviously insufficient to show accident, or mistake, unmixed with negligence, upon demurrer specifying its defects, yet in the absence of demurrer, such bill should not be dismissed for want of equity.
    
      Appeal from Montgomery City Court.
    Tried before Hon. A. D. Sayre.
    The bill in this case was filed by the appellants, Mary W. Owen and P. H. Owen, against tbe appellee, Natban Gerson; and prayed to have enjoined a judgment recovered by the defendant Gerson against the complainants in the circuit court of Montgomery county, and that the complainants be permitted to set off against said judgment and in satisfaction thereof, certain claims which they held against the defendant. It was averred in the bill, “that owing to the continued sickness of both of the complainants they failed to make any defense to said suit, or to interpose any plea of set-off or recoupment.” On the filing of the bill a preliminary injunction was issued. To the bill the defendant demurred upon several grounds and also moved to dissolve the injunction and to dismiss the bill for the want of equity. On the submission of the cause upon the demurrer and upon the motion to dissolve the injunction and to dismiss the bill for the want of equity, the judge of the city court, sitting as chancellor, without passing specifically upon the demurrers, ordered the injunction dissolved and the bill dismissed. From this decree the complainants appeal, and assign the rendition thereof as error.
    Gordon McDonald, for appellant,
    cited, Waldron v. Waldron, 76 Alai'285; Waring v. Lciois, 53 Ala. 615; Kirby v. Kirby, 70 Ala. 370; Moore v. Taggart, 51 Ala. 525.
    Lee H. Weil, contra,
    
    cited, RobMing v. Stevens, 93 Ala. 39; Noble v. Moses Bros., 74 Ala. 604; Waldon v. Waldron, 76 Ala. 285; McOolUtm v. Prewitt, 37 Ala. 573; Moore v. Faggard, 51 Ala. 525; Nat. Ferf. Go. v. Hinson, 15 So.- 844; Powell- v. Stewart, 17 Ala. 719; Watts v. Sayre, 76 Ala. 397; O’Neill v. Perryman, 14 So. 898.
   HEAD, J.

It may be that insolvency alone of the plaintiff in judgment is not a sufficient ground for resort by defendant to a court of equity to set. off á demand held by him against the plaintiff which could have been made available as a defense in the action-at law, and that to support a bill it must be averred that the failure to plead and obtain tbe benefit of tbe setroff in tbe action at law was due to fraud, accident or. mistake .unmixed with negligence, etc., as is required in reference to defenses that are necessarily involved in tbe adjudication at law. It seems to have been so expressly field in Pearce v. Winter Iron Works, 32 Ala. 68, and Nelms v. Prewitt, 37 Ala. 389. See also, Watts v. Sayre, 76 Ala. 397. But tfie demurrers to tfie bill raising tfiat question fiave not been passed upon by tfie chancellor, and tfie question is not before us., Tfie chancellor having, dissolved tfie injunction and dismissed the bill for want of equity, we fiave only to inquire whether tfie bill,, considering all amendable defects as having been cured by amendment, contains equity — whether in the absence of demurrer tfie averments are sufficient to support decree pro ccmfesso and final decree granting relief. '

Tfie complainants, after sufficiently setting up the set-off and averring insolvency of the defendant (plaintiff in tfie judgment at law) set up in tfie bill, as an excuse for not defending at law, their continued sickness. Whilst this is obviously insufficient upon demurrer specifying its defects, yet the defendant in tfie bill may, if fie chooses, accept it as sufficient by not making specific objection by demurrer, pointing out tfie defects, and in tfiat case tfie averment would sustain the bill and relief granted thereon/ A motion to dismiss tfie bill or dissolve tfie injunction for -want of equity would' not lie. Such is, in effect, this case as it comes before us — tfie demurrers not having been passed upon — rand we are compelled to hold tfiat tfie decree sustaining the'motion to dismiss and dissolve tfie injunction was erroneous.

Reversed, injunction reinstated and cause remanded.  