Owen v. Gerson
Supreme Court of Alabama
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.
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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…
1Opinion of the CourtHead, 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 *219to 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…
2Cases cited3 opinions
- Pearce v. Winter Iron-WorksSupreme Court of Alabama · 1858
- Watts & Son v. SayreSupreme Court of Alabama · 1884
- Nelms v. PrewittSupreme Court of Alabama · 1861
3Cited by5 opinions
- Nixon v. Clear Creek Lumber Co.Supreme Court of Alabama · 1907
- Stewart v. BurginSupreme Court of Alabama · 1929
- Middleton v. FosheeSupreme Court of Alabama · 1915
- Hamner v. FreemanSupreme Court of Alabama · 1913
- Kanape v. ReevesSupreme Court of Alabama · 1899