Smith-Howard Gin Co. v. Ogletree , 251 Ala. 366 ( 1948 )

This case was placed on rehearing by the writer to permit Mr. Burr, one of appellants' attorneys, to file an additional brief which had just been completed, resisting appellee's cross-assignments of error challenging the soundness of the decree of the circuit court insofar as it sustained the appellants' demurrer "as to the aspect of said bill of complaint wherein complainant seeks to have Smith-Howard Gin Co., Inc., dissolved and its assets sold under a decree of the court and the proceeds thereof distributed." This phase of the demurrer assigns grounds 1, 10, 11, 13, 14, 15, 17, 18, 20, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, 34, 35 and 36 theretofore addressed to the bill as a whole. Leave was also granted appellants to file supplemental brief within the time allowed for rehearing to criticize the opinion promulgated October 7, 1948. Said briefs have been filed, the first mentioned on October 9th and the other on October 22nd, and both limited to a discussion of the cross-assignments of error.

The specific assignment to "separate aspects" was in the concluding paragraph of the separate demurrer of the several defendants. These specific assignments to separate aspects seem to rest upon the nature of the relief prayed — the prayer — rather than to the allegations of fact in the stating part of the bill.

It is a well settled rule of equity pleading that when a bill is sufficient in its allegation of facts to make a case for equitable relief and contains a proper prayer, it is not demurrable because it prays for unwarranted relief. Wilks et al. v. Wilks, 176 Ala. 151, 57 So. 776; Dickson v. Dickson,247 Ala. 330, 332, 24 So.2d 419; Local Union No. 57, Brotherhood of Painters, Decorators and Paperhangers of America v. Boyd,245 Ala. 227, 16 So.2d 705; Patton v. Birmingham Trust Savings Co., 235 Ala. 586, 180 So. 264.

Whether or not a bill is single in scope and purpose or presents a case in more than one aspect or is multifarious must be determined from its allegations of fact. If the pleader by his allegations seeks to present the case in a double aspect or in alternative aspects and the allegations in one or more of the aspects do not make a case for equitable relief or bring into the case different and unrelated transactions as to property or rights between other parties, the question of duplicity or multifariousness may be raised by demurrer. On the other hand if the facts alleged present a controversy between the same parties relating to the same property and property rights and make a case for equitable relief and the bill is single in its scope and purpose, though it prays for different or unwarranted relief, it is not subject to demurrer, and the court will determine the appropriate scope and character of relief to be granted on the final hearing. This is the effect of Equity Rule 15, Code 1940, Tit. 7 Appendix, interpreted in the light of Alabama Equity Rule 1, Code 1940, Tit. 7 Appendix, and the former decisions of this court. Said Rule 1 provides, inter alia:

"They (the equity rules) shall be construed to secure the just, speedy, and inexpensive determination of every such suit, and supersede all sections of the Code and Statutes, or parts thereof, in conflict with these Rules." Code of 1940, Tit. 7, p. 1037.

Equity Rule 15 provides:

"Ruling on multifariousness. A bill is not necessarily multifarious when it seeks alternative or inconsistent relief growing out of the same subject matter, or founded on the same contract or transaction, or relating to the same property between the same parties.

"The court has the power, either on demurrer for multifariousness or on motion or of its own motion up to final decree, to order a severance of combined causes of action; and when so separated the causes may continue with or without retaking or taking further testimony, or decrees pro confesso, as the court shall direct in its reasonable discretion." Code of 1940, Tit. 7, p. 1055.

In City of Mobile v. McCown Oil Co., 226 Ala. 688, 692,148 So. 402, 405, the previous utterance of the court was reiterated and followed that, "* * * 'In testing a bill for multifariousness, the whole bill must be considered. Every casemust be governed by its own peculiar facts. In determining the question, multiplicity of suits should be avoided. It is left in a measure to the sound discretion of the court. 6 Mayf.Dig. 318, § 114 1/2; Sicard v. Guyllou et al., 147 Ala. 239,41 So. 474.' " [Italics supplied.]

The court further observed, "The suit here is entirely between the city of Mobile and the one respondent. Its purpose is single, and its only object is to secure a judicial ascertainment of the amount due by the respondent to the city for license taxes in the conduct of respondent's business, and for incidental relief, connected with the main relief sought. * * *" City of Mobile v. McCown Oil Co., supra.

In Magnolia Land Co. v. Malone Investment Co., 202 Ala. 157,79 So. 641, the court observed: "The relief to be awarded in any case is determined by the facts alleged in the bill; and, under the general prayer the complainant may, in the ordinary case, have the relief authorized by the facts averred, although he may be mistaken in the special relief prayed. Rosenau v. Powell, 173 Ala. 123, 55 So. 789. * * *"

The origin, history and analysis of the prevailing rule in Alabama prior to adoption of what was § 6526 of the Code of 1923 now part of Equity Rule 15, supra, is interestingly set forth in Sims' Chancery Practice, §§ 209-219, showing the vexing uncertainties that brought about the enactment of said § 6526, supra, and the subsequent liberalization and clarification by Rule 15, supra.

It follows, as a matter of logic and law, that when complainant's bill presents a state of facts entitling him to equitable relief, relating to the same subject-matter and dealings between the same parties single in its scope and purpose, it cannot be divided up into aspects and made duplicitous by the manner in which the defendants address their demurrers thereto.

The facts alleged in the bill are fully stated in the opinion of October 7th showing, in short, that Smith, the majority stockholder, is in command and control of the corporation, has possession of its records, its assets and corporate estate and is acting for and in the name of the corporation, using it as a cloak or cover to defraud the complainant of his property rights in said corporation and its estate, and has assumed to take over and claim to town the stock which he sold to complainant and for which complainant paid, together with all the increment thereof, and has appropriated the same to the use of respondents, repudiating and denying complainant's rights therein. In short, the respondents, through the control and domination of Smith, have converted complainant's rights and interest in the corporation. Bolling v. Kirby, 90 Ala. 215,7 So. 914, 24 Am.St.Rep. 789.

The bill is single in its scope and purpose, seeking to recover or to require respondents to account for the complainant's interest in the corporate property and estate. As related to complainant's rights of property, in these circumstances, Smith and the Smith-Howard Gin Company, Inc., are one and inseparable. To repeat, in part, what was said in the original opinion, "It would be a sad commentary on the law if, when the trustee of a corporate estate * * *, has shown improper partiality toward one of its conflicting parties, or has put the estate in a fix it is liable and likely to be either wasted or destroyed, or mercilessly taken from all andgiven to a part, a court could not reach out its arm and preserve and administer the estate. * * *" This statement is taken from 6 Thompson on Corporations, 3rd Ed., p. 327, § 4628, cited with approval in Altoona Warehouse Co. v. Bynum, 242 Ala. 540,545, 546, 7 So.2d 497. [Italics supplied.]

The bill being single in its scope and purpose, the demurrers filed go to the sufficiency of the bill as a whole and the questions raised were fully treated in the opinion heretofore promulgated.

Application for rehearing overruled.

FOSTER, LAWSON and STAKELY, JJ., concur.