On Rehearing
On application for rehearing the appellee calls our attention to the fact that in writ*587ing the opinion on the original hearing we entirely overlooked what he regards as the strongest allegation in the bill and which we set out as follows:
“Complainant avers that he did not himself consent that, in addition to his execution of this release, a judgment should be entered by consent of the parties in his favor against Enoch Battle for $3,000.00, that he did not authorize anyone else to enter into such a consent judgment, and that no one else was authorized by him to consent on his behalf to the entry of any consent judgment in said cause.”
In other words, we treated the alternative allegations in the bill of mistake and fraud but did not deal with the allegation showing absence of consent on the part of Enoch Battle for a judgment to be entered in his behalf. Attention is called to the fact, however, that in describing the allegations of the bill in the original opinion we stated:
“That such judgment was entered without the consent of Radford Morris and without reference to the agreement of settlement between the parties.”
We say now, however, that the allegation of nonconsent makes no change in the result of the case. It is our understanding that the judgment was rendered on April 2, 1954. By its very terms it shows that it was a judgment by consent in favor of the plaintiff for $3,000. The bill in this case to set aside the consent judgment, as we understand the record, was filed on the 26th day of July, 1955.
It will be observed that the bill was not filed within the thirty days from the date of the judgment when the court rendering the judgment had jurisdiction over the judgment but was filed about eighteen months after the date of the judgment. It further affirmatively appears from the allegations of the bill that appellee cannot say that he did not have notice or knowledge because the allegations of the bill show that the attorney for Enoch Battle marked the judgment satisfied on the day it was rendered.
We quite understand that a consent judgment may be set aside in the equity court where there is actual absence of consent just as well as it can be set aside for mistake or for fraud, but the principles upon which the equity court can set the judgment aside in any of these instances are the same. Adler v. Van Kirk Land & Const. Co., 114 Ala. 551, 21 So. 490. In Hendley v. Chabert, 189 Ala. 258, 65 So. 993, cited in the original opinion, it is shown that a proper and due regard for the peace and interests of society requires strictness and caution in exercising the power to disturb the decrees and judgments of other courts of competent or concurrent jurisdiction and in reopening controversies which it is the policy of the law to quiet. It is shown that in order to invoke successfully the interposition, in this case of a court of equity, it is not sufficient that wrong has been done, but it must be manifest that the wrong occurred without fault or negligence on the part of the party complaining. A concurrence of injustice committed and freedom from fault and negligence, is an indispensable condition to the exercise of this jurisdiction. And it is expressly held that an exercise of due diligence required that application be made to the law court for relief during the term at which the judgment was rendered (now for a period of thirty days from the date the judgment was rendered) or if not, that the bill disclose a valid reason for the omission.
There is nothing in the present bill which shows that the complainant could not have asked the court which rendered the judgment to set aside the judgment within thirty days from the time it was rendered, nor is there any allegation in the bill to excuse a failure to do so. This is a fatal1 defect in the bill and is just 'as much a defect as though the ground upon which the judgment is sought to be set aside is either mistake or fraud. Lucy v. Hall, 264 Ala. 273, 87 So.2d 32.
*588In the original opinion it was shown that joint tort-feasors are jointly and severally liable for the entire damage sustained. And in the absence of statute providing otherwise, damages against joint tort-feasors may not be apportioned. Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612; Layman v. Hendrix, 1 Ala. 212; Slade v. Street, 77 Ala. 576; 49 C.J.S., Judgments, § 36, p. 88; 86 C.J.S., Torts, § 34, p.. 949. But the question may be asked as to why the damages in the instant case may not be apportioned in a judgment by consent. We call attention to the authorities collected in 135 A.L.R. p. 1498 et seq. So far as the case before us is concerned, it is sufficient to say that Lewis Thomas is not a party and there is nothing to show that Lewis Thomas, who is a joint tort-feasor, has consented to an apportionment of the damages.
The application for rehearing must be overruled.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.