
    McCOLLUM vs. PREWITT.
    ■[bill in equity for INJUNCTION OF JUDGMENT kt’DAw.l
    3. ¡¡quitable relief against judgment at law, oí} ground of discovery. — After the rendition of a judgment at law against a party, he cannot maintain a hill in equity for 4 discovery as 'to (matters of purely legal cognizance, witliout showing a sufficient oxousofor liis failure to take tho proper steps to obtain the discovery, either by bill in equity, or by interrogatories nnileir tlio statute, while the' action air-law was pending.
    8. Same, on. ground of usury — Usury in.the note on which a judgment at law is founded, constitutes no ground for equitable relief against the judgment, unless a sufficient excuse is shown for the failure to make the defense at law.
    3. Same, .on-account of .surprise, accident, mistake, or fraud. — ‘A party who seeks equitable relief against a judgment at law, on grounds which were av&ilábio'íts a defense at law; and who simply shows that he had a valid defense to the action, and a sufficient excuse for his.-fail» urc to he present at the trial term, at- which the judgment was rendered ; hut fails to show'that ho had.omployed counsel, or summoned witnesses, or taken any other steps to defend the action, although it was ponding more than six months'before -the judgment was rendered, — does not relieve himself from tho imputation of negligence, and, consequently, is not entitled to relief.
    4.. Same, owaccount of irregular affirmance on certificate. — The affirmance of a judgment by tho supremo court, on certificate, at the term .next preceding that to which tho appeal is taken, may,bo corrected on motion. and, consequently, furnishes no ground for. equitable relief against the judgment.
    Appeal from tlio Chancery Court of Fayette;
    Heard before the Iíoi>. James B.-Clabk.;
    The bill in..,this case-was filed, on the 30th September, 3.859, by James K. McCollum,:,.against John W. Prewitt; and sought to enjoin a judgment at law, which said Prewitt bad recovered against said McCollum and others. The action, at law,.in which said judgment was rendered, was commenced on the 20th September, 1S5S, and was founded on a promissory note for $1050, executed by said McCol-lum and others, dated the 8th July, 1856, and payable six months after date; and tlie judgment was rendered, on the verdict of a jury, on the 19th April, 1859. The consideration of said note, according to the allegations of the bill, was $400 loaned by said Prewitt to said McCollum, and an open account, for about $100, which McCollum’s son had contracted with Prewitt; the residue consisting of usurious interest on the money loaned. In addition to the charge of usury, the complainant alleged, that he had delivered to he defendant, before the rendition of said judgment, warehouse receipts for sixteen bales of cotton, “upon the special trust and. confidence that he (said defendant) would take control of said cotton, dispose of the same, and apply the proceeds to the discharge of said debt;” that the defendant sold the cotton, but failed to give the complainant credit on tho note for-the amount of the proceeds of sale, and refused to inform him of the amount realized hy the sale; and that the complainant knew no person, except the defendant,'by whoas-he could prove the-trust on' which the defendant received--the cotton, and the price for-which it was sold. In excuse of his failure to appear and defend the action at daw/ the complainant alleged, that his residence was twelve miles-'fkom the court-housethat bis wife was dangerously ill during the entire term of the court at which the judgment was rendered, and required his constant attendance; that he sent an agent to the court, to make his excuse for non-attendance, and to ask a continuance of the cause j that said agent informed him,- on his return, that the cause had been passed by the court, in order that he might-have an-opportunity to submit an affidavit, stating the cause of his -absence and the grounds of his defense, and that the cause would he continued, or at least so much of -it as he proposed to litigate, on the reception of liis affidavit | -that he accordingly made an affidavit .before a justice of the peace, stating -therein the grounds of his defense and the cause of his personal absence, and forwarded it to the court; and that he did not learn, until after the adjournment of the court, that his application for a continuance bad been disregarded, and a judgment rendered against him for the full amount of the note and interest -thereon.- The complainant further alleged, that, oil or about the 1st July, 1859, he sued out an appeal from said judgment, returnable to the next January term of this court, and gave bond, with sureties, to supersede said judgment$ and that on or about the 14th July, 1859, the defendant procured- an affirmance of said judgment in this court, on certificate, “ by improperly representing, through his attorney, that said appeal was taken to the June term, 1859, of said court, stftcl suppressing the fact that'it was taken to the January -term, I860.” The prayer of'the bill was for an injunction of the judgment, a ■discovery as to the proceeds of the cotton, an account, and ■“general relief. The chancellor dismissed the bill, on motion, for want of equity ; and his decree is now assigned -as error.
    W. P. ChiltoN, with Taos. M. Peters, for appellant.
    E. W. Peck, with E. A. Powell, contra.
    
   STONE, J.

The first point relied on in support of the 'equity of the present bill is, that it can be sustained as a bill for discovery. Tt has long been settled in this State, that a party who is sued at law, and suffers judgment to go against him, cannot afterwards maintain a bill for discovery of matters of purely legal defense to the action at daw, unless he shows sufficient excuse for not defending at law, and brings himself within the rule which, in certain cases, allows a party, after trial at law, to have a retrial in equity. — See Powell v. Stewart, 17 Ala. 710 ; 1 Reav. Dig. 284, § 696. Under this principle, bills for discovery, after judgment at law, are placed in the same category with other bills for relief against judgments at law, on account of alleged fraud, accident, or the act of 'the opposite party.

The second ground relied on is, that there is usurious interest charged in the note, and recovered by the judgment. This ground stands on the same footing as the other, and comes too late, unless a sufficient excuse be rendered for not defending at law. — See Mallory v. Matlock, 10 Ala. 595 ; Jones v. Kirksey, ib. 579.

This case must, then, be disposed of without any reference to the points above noted, further than they tend to show that complainant had a good and valid defense to the action at law. It was early settled in this court, and has never been departed from, that equity will not interfere after a judgment at law, unless the party can impeach tbe justice of tbe judgment by fads, or on grounds, of which he could have availed himself, and was prevented 'from doing so by fraud, accident, or the act of the opposite party, unmixed with fault or negligence on Ins /part — French v. Garner, 7 Por. 549 ; Davis v. McCampbell, and Shannon v. Reese, adm’r of King, both at the present term. In the present case, Mr. McCollum had been sued some seven months before the judgment was rendered. He probably shows a sufficient excuse for not being present at the term of the court when judgment was given against him. But for his omission to mate preparation during all the time intervening between the commencement of the suit and the trial, he oilers no excuse. He filed no bill, and served no interrogatories for discovery, in aid of his defense at law; and if he employed counsel to defend him, or summoned witnesses to testify in his behalf, hq has not informed us of it. This does not relieve him from the imputation of negligence. — Haughey v. Strang, 2 Por. 177; Pharr v. Reynolds, 3 Ala. 521; Stinnett v. Branch Bank, 9 Ala. 120 ; Foster v. Bank, 17 Ala. 672 ; Hair v. Lowe, 19 Ala. 224; Perrine v. Carlisle, ib. 686 ; Watts v. Gayle, 20 Ala. 817 ; Talliaferro v. Branch Bank, 23 Ala. 755 ; Allman v. Owen, 31 Ala. 167 ; Moore v. Lesueur, 33 Ala. 243.

The irregularity in the affirmance of the judgment by this court, could have been corrected on motion, and furnished no ground for-equitable interposition. — McClure v. Colclough, 6 Ala. 492.

Decree of the chancellor affirmed.  