Black v. FIRST NATIONAL BANK OF MOBILE, ALABAMA

• Decision Date: 26 May 1958
• Docket Number: No. 16975.,16975.
• Citation: 255 F.2d 373
• Parties: Charles G. BLACK, as Trustee in Bankruptcy of the Estate of Butler-Foster Milling Company, Appellant, v. FIRST NATIONAL BANK OF MOBILE, ALABAMA, and Merchants National Bank of Mobile, Alabama, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

255 F.2d 373 (1958)

Charles G. BLACK, as Trustee in Bankruptcy of the Estate of Butler-Foster Milling Company, Appellant, v. FIRST NATIONAL BANK OF MOBILE, ALABAMA, and Merchants National Bank of Mobile, Alabama, Appellees.

No. 16975.

United States Court of Appeals Fifth Circuit.

May 26, 1958.

John R. Gilliland, Walter P. Armstrong, Jr., and J. S. Allen, Memphis, Tenn., for appellant.

Gessner T. McCorvey and R. F. Adams, Mobile, Ala., McCorvey, Turner, Johnstone, Adams & May, Mobile, of counsel, for appellees.

C. B. Arendall, Jr., and T. Massey Bedsole, Mobile, Ala., Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, Ala., of counsel, for First Nat. Bank of Mobile.

Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges.

HUTCHESON, Chief Judge.

By this appeal from an order dismissing its action, plaintiff presents a single question for our decision. This is whether the district court erred in dismissing the action and the causes of action which the trustee asserted in the complaint as amended. As appellant states it in his brief:

"This is a case in which plaintiff (a resident and citizen of the State of Tennessee), Trustee in Bankruptcy of the estate of Butler-Foster Milling Company, Bankrupt (hereinafter referred to as `Milling Company\'), a corporation organized and existing under the laws of the state of Missouri, seeks to recover from the two defendant banks (each of which is a national banking association and is a resident and citizen of the State of Alabama) sums of money totalling $1,306,250, on the grounds that said money constituted assets of Milling Company and that various transfers and diversions thereof, participated in by both banks with knowledge and actual intent to hinder, delay and defraud the existing and future creditors of Milling Company, constituted a scheme or plan on the part of said banks to hinder, delay and defraud said creditors, and that said transfers and diversions, made or suffered as part of said scheme or plan, were fraudulent and voidable as to Milling Company and its creditors, and therefore null and void as to plaintiff Trustee under applicable provisions of the Bankruptcy Act including Sections 60, 67, and 70 11 U.S.C.A. §§ 96, 107, 110. Federal jurisdiction was invoked by virtue of diversity of citizenship and under said Sections of the Bankruptcy Act and Sec. 23 11 U.S.C.A. § 46 thereof."

The defendants moved to dismiss the action and each cause of action, and the district judge granted the motion with leave to plaintiff to amend within thirty days. Thereupon plaintiff filed his motion for a rehearing, briefs were submitted, the motion was denied, and plaintiff filed his notice of appeal from the original order of dismissal and from the denial of his motion for rehearing.

While the appellees do suggest in limine that because the dismissal order granted leave to amend within thirty days, the order is not final and appealable, each in brief, and in oral argument in which we are assured that a decision on the merits if that is possible is desired, meets head on the issue tendered by appellant. Insisting with vigor and confidence that the complaint does not present a cause of action on which relief can be granted and the judgment of dismissal was therefore correctly entered, each in brief and argument boldly asserts that, read with every intendment in its favor, the pleading affirmatively shows that plaintiff has not been wronged by, and is therefore not entitled to relief against, either defendant.

In no doubt that the order of dismissal was final and appealable and that the question of its correctness is before us for decision, we begin our discussion with, and base our decision upon, a quotation from the opinion of this court in Byrd v. Bates, 5 Cir., 220 F.2d 480, at page 482, which we think fully supports appellant's position on the law:

"As we said in John Walker & Sons v. Tampa Cigar Co., 5 Cir., 197 F.2d 72, 73; `Rule 8 of the Federal Rules of Civil Procedure, 28 U.S. C.A., provides that a pleading shall set forth a short, plain statement of the claim showing that the pleader is entitled to relief * * *. Absent from this rule is the old requirement of common law and code pleading that the pleader set forth "facts" constituting a cause of action. It is also elementary that a complaint is not subject to dismissal unless it appears to a certainty that the plaintiff cannot possibly be entitled to relief under any set of facts which could be proved in support of its allegations. Even then, a court ordinarily should not dismiss the complaint except after affording every opportunity to the plaintiff to state a claim upon which relief might be granted.\'"

We follow it with a brief discussion giving our reasons for thinking that it was error to dismiss the action. It is in the light of these principles that the question posed must be answered. In their light, appellee's inveighing against the pleadings that they are prolix and complicated, is answered by the consideration that the very fact of their complexity tends to make more clear that an order dismissing the complaint rather than one requiring its simplification compounds and increases the error inherent in the attempt to dispose, on the pleadings, of the issues for decision here. In complete disregard of this consideration, the appellee, First National Bank, devotes a large part of its brief to the proposition that, because the amended complaint does not, as required by the rules, contain a short and plain statement of the claim and, what it calls a pall of confusion and self contradiction overhangs and clouds it, in short because the pleading is obscure, the dismissal was required. We have held to the contrary in the two cases cited above and in Atwood v. Humble Oil & Refining Co., 5 Cir., 243 F.2d 885.

Accepting for the purpose of...