Smith v. Lineville Nat. Bank , 21 Ala. App. 65 ( 1925 )

This suit was brought on a promissory note. Invoking the right given under section 6490 of the Code of 1923, defendant, by motion, sought to transfer the cause to the equity side of the docket. The motion was tested by demurrer, demurrer was sustained, and defendant presents this action of the court as error. When brought to its last analysis, the motion was based upon the following allegations: (1) That the debt due by him to plaintiff was evidenced by one note for a sum certain, and that as an offset plaintiff was due him attorney fees for services rendered during a period of 10 years or more; (2) that defendant was a stockholder in plaintiff corporation, and that its officers and directors had mismanaged the bank in certain particulars.

1. The claim on the part of plaintiff consisted of one item evidenced by a promissory note signed by defendant, as to which defendant was entitled to certain credits for payments admitted to have been made by him, and defendant claimed other set-offs for professional services rendered to plaintiff during a series of years. This was a simple matter of ascertainment, and would not of itself be the subject of equitable jurisdiction. Crothers, Adm'r, v. Lee, 29 Ala. 337; Knotts v. Tarver, 8 Ala. 743; Hudson C. Co. v. Vaughn,57 Ala. 609. While it is true that the relation of attorney and client is fiduciary, if there is no complexity or difficulty in the account between the parties, the fact alone of the relationship does not present a case for equity jurisdiction. Crothers v. Lee, 29 Ala. 337.

2. The question of the mismanagement of the affairs of the bank by its board of directors and officers was res inter alios acta, and could not be made an issue between these parties in a suit wherein plaintiff and defendant are alone concerned. McDaniel v. Turnipseed, 165 Ala. 189, 51 So. 757.

The motion to dismiss the case on the ground of insufficiency of service is without merit. Davis v. McCrary Dean, 100 Ala. 545,13 So. 665.

We find no error in the record, and the judgment is affirmed.

Affirmed.