Josiah T. Budd, Executor of William Budd, deceased, Appellant, vs. Robert Gamble, Jr., Appellee, 13 Fla. 265

RARE ALL, C. J., delivered the opinion of the Court. It is a fundamental maxim in courts of equity as well as of law, that no proof can he admitted of any matter which is not noticed in the pleadings; and also that the complainant must state' a case in his bill which entitles him to relief, or he can have no decree in his favor. He' must introduce into his bill every material fact which he intends to prove. Daniel’s Ch. Pl. and Pr., 850.

And it is said farther*, “ with respect to claiming the same benefit by answers that the defendant would be entitled to, if he had demurred to the bill, or pleaded the matter alleged in his answer in bar, it is to be noticed that it is only at the hearing of the cause that any such benefit can be insisted upon ; but that at the hearing of the case the defendant will in general be entitled to the same advantage of this mode of defence that he would have had if he had adopted the more concise mode of defence by demurring or pleading.” Ib.

Where the defendant answers the bill, reserving the questions of law, if atjthe final hearing the court be of opinion that there is not such a case made out by the bill as will warrant relief, the bill should be dismissed. Meux vs. Anthony, 6 Eng., 411. The bill in this case states that the complainant “ had no knowledge of the existence of the judgment” until twenty years after it was rendered, and that the return upon the summons does not show a legal service upon him. All this may be true: The return certainly does not show a proper service and does not confer jurisdiction of the person of the defendant.

But notwithstanding all that is alleged, the judgment may be regular and binding upon the complainant, for he nowhere states in his bill that he did not appear to the action in person or by attorney. The fact that he resided in another county is of no importance, as the indebtedness occurred in Jefferson county.

To entitle himself to defend against the judgment, he should have shown in his bill not only that he was not served, or had no notice of the institution of the suit, but that he did not appear therein in person or by attorney; but as he denies only the regularity of service and his residence in the county where the suit was brought, he leaves it open to the legitimate inference that he appeared to the action, and in this he fails- to allege any defect in the jurisdiction of the County Court.

Moreover, the answer expressly alleges that the complainant did appear to the action in the County Court by his attorney and said nothing in bar of the action.

Instead of amending his bill in this particular and impeaching the authority of the attorney who appeared for him, (if one did appear,) he merely filed a general replication insisting upon the matters alleged in his bill, and denying generally the allegations in the answer. _ . • The only matters set up in the bill which could be held to make a case of merit, independent of the question of the want of jurisdiction, is a general allegation of payment, and this allegation is explained in the bill itself to be the conclusion of the complainant, drawn from the alleged fact that he had arranged with Edwards to surrender to him certain leased lands, for the rent ot which the note had been given, and that “ Edwards was to substitute other notes in the place of the complainant’s.” There is no allegation that such substitution was made. ' The bill does not set up that Budd had any notice of such agreement, or of any fact by which - his rights could in any respect be affected by an agreement between Edwards and Gamble.

"We assent to the doctrine that where the statute of limitations has intervened, equity should not relieve against a judgment at law upon the ground that the appearance of an attorney, upon which the judgment was based, was unauthorized. The plaintiff must show under such circumstances merits as well as irregularity. A plaintiff cannot be held to inquire into and ascertain whether an attorney’s appearance is authorized, whenever in open court upon the calling of the docket, an attorney enters an appearance.

Where the statute of limitations' intervenes and equity enjoins the judgment upon this ground, the clear result is to make the plaintiff lose, when he certainly was not in fault. The very least that should be required would be to show insolvency of the attorney, and while the question is not necessarily involved in this case, we think that merits as well as insolvency should be shown where the statute intervenes.

The issues of fact in this case were upon the matters contained in the bill, which, as we have seen, fails to present a material issue, and it is therefore unnecessary to look at the proofs for the purpose of disposing of the case. See St. Andrews Bay Land Company vs. Campbell, 5 Fla., 560. We are disposed, however, to look further into the record for the purpose of determining whether the complainant may not, by amending his bill, present such a case as will entitle him to relief. Ho facts are charged which show any fraud or collusion in the matter.

In his testimony the complainant swears that the first intimation hé received of the institution of the suit was in 1862, when the sheriff of Leon county informed him that he had been directed to levy upon his property ; that he never knew that Budd had any valid claim against him ; “ that the note on which the suit was brought, was one of several given to the Commissioners of the School Fund of Jefferson county, for the rent of certain lands for a term of years, that by the consent of the Commissioners the notes were retired, being substituted by those of John A.

Edwards, to whom they transferred the lease, and he was of the impression that all of his notes had been cancelled.” ■This is the evidence relating to the payment or discharge of the note. . He remembers the transaction and that an arrangement was made, but that this note was included ho has only an impression, and we cannot say that this proves either an averment that the note was paid, or that it was discharged in any way.

The complainant also testifies, (and is supported by the attorney, Wirt,) that he never employed Wirt to appear for him, and Wirt says that he entered his appearance in the suit under a misapprehension, supposing the suit to be against another person of the same or a similar name.

The preponderance of authority leads us to the conclusion that in cases like this the court will not interfere and enjoin the judgment unless fraud is disclosed in the proceedings, or unless the party shows clearly that lie has been unfairly deprived of the opportunity of making a valid defence upon the merits, or that it would be “ against conscience” to execute the judgment. There can be no precise rule laid down' which should control all cases of similar or proximate general character. This remark is justified by an examination of the decisions of various courts in analagous cases.

The courts do not sustain judgments entered against defendants without notice and without appearance ; such proceedings do not bind defendants on account of the defect of jurisdiction over the person. In cases like the present, however, where it appears that an unauthorized attorney has appeared for a party, and the appearance has not been subsequently adopted by him, some courts have relieved against the judgment entered without reg'ard to any other circumstances.

Without exception, we believe, the cases in which this relief has been granted show that the application has been made very soon after judgment rendered.

In general, however, the party has been held by the judgment and referred to the unauthorized attorney for redress, unless the attorney was insolvent or a “ suspicious person.” But courts of chancery have in such cases very uniformly allowed the defendants to show a fraudulent collusion between other parties and the officers or attorneys in obtaining the judgment, or to show that he had a meritorious defence, of which he was deprived by fraud, or accident, or mistake, and that it would be “ against conscience” to execute the judgment, and upon this to grant relief.

Here, the complainant had executed a negotiable promissory note, upon which the judgment was rendered twenty-eight years ago. To grant unconditional relief upon the showing that the attorney who appeared for him had no authority to appear, would be to relieve him from the payment of his debt if the statute of limitations be interposed. It does not appear that the note was ever paid or otherwise discharged. The purpose of a judgment is to establish the indebtedness and decree its payment.

The original indebtedness is confessed and is not shown to have been paid, nor does it appear that the complainant ever made inquiry as to the whereabouts of the note. Under such circumstances, it would be manifestly against equity to relieve against _ this judgment upon the proofs.

The testimony seems to have been taken to meet the case as though it had been well stated in the bill, and if it had appeared by the testimony that the complainant was entitled to relief, we might direct that the bill be amended to conform to the case proved, but as this does not appear, our judgment is that the decree must be reversed and the bill dismissed.