Treadway v. Stansell , 203 Ala. 52 ( 1919 )

The bill in this cause has for its primary object the settlement of the affairs of the partnership existing between the complainant and respondent Treadaway, doing business under the firm name of Treadaway Stansell Cooperage Company. The sufficiency of the bill for this purpose is quite clear under the decisions (Dugger v. Tutwiler, 129 Ala. 258, 30 So. 91), and, indeed, is not questioned on this appeal.

It is insisted, however, by respondent Treadaway that the bill is multifarious, in that respondent N. K. Bitting was brought into the case concerning a settlement of the partnership with a large part of which he was not concerned. The bill shows, however, that respondent Bitting was agreed upon as a trustee to handle the products of the partnership's business, and that he handled large sums of money for said firm. It has been held by this court that it is not necessary that all the parties should have an interest in all the matters in controversy, but it is sufficient if each defendant has an interest in some of the matters involved, and they are connected with the others. Truss v. Miller, 116 Ala. 494, 22 So. 863; Bentley v. Barnes, 155 Ala. 659, 47 So. 159; O'Neal v. Cooper, 191 Ala. 182,67 So. 689.

However, in the instant case, we do not reach that question except incidentally, as such an objection can only be taken by the defendants who are affected by the multifariousness. Respondent Treadaway is clearly properly before the court for an accounting and settlement of the partnership affairs; and, if respondent Bitting is not properly brought in as a party, this is a matter of which Treadaway cannot complain, as he will not be affected thereby. Ellis v. Vandergrift, 173 Ala. 142,55 So. 781.

The bill was clearly sufficient as against any demurrers interposed by respondent Treadaway, and the decree overruling the same is here approved.

This brings us to a consideration of the pleas as to jurisdiction by the respondent Bitting, a nonresident of the state, who was brought in by publication, as required by the statutes, and without personal service. While the bill discloses the execution of a mortgage by the partnership to this respondent, yet it is further alleged that Bitting, upon an accounting and settlement, will be found to be largely indebted to the firm, thus disclosing in effect that the mortgage had been fully satisfied, and that upon an accounting the balance will be found to be in favor of the mortgagor. No relief whatever as to this mortgage is sought, and, if we properly construe the bill, the only relief in effect sought as to Bitting is by way of injunction and accounting, both of which would involve a personal decree against said respondent. No personal service having been had upon respondent Bitting, such personal decree could not be enforced under such a bill. Long v. Clark, 201 Ala. 454, 78 So. 832; Tigrett v. Taylor,180 Ala. 296, 60 So. 858.

The object of the suit does not come within the provisions of subdivision 2 of section 3054 of the Code of 1907, and we are therefore of the opinion that the pleas of respondent Bitting to the jurisdiction of the court should have been held sufficient, and that the court erred in its decree as to this respondent.

It results therefore that the decree as to respondent Treadaway will be here affirmed, but as to respondent Bitting the same will be reversed, and the cause remanded. Complainant and respondent Treadaway will each be taxed with one-half of the costs of this. appeal.

Affirmed in part, and in part reversed and remanded.

ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.