Blackburn v. Fitzgerald

• Decision Date: 16 May 1901
• Parties: BLACKBURN ET AL. v. FITZGERALD ET AL. [1]
• Court: Alabama Supreme Court

30 So. 568

130 Ala. 584

BLACKBURN ET AL. v. FITZGERALD ET AL. ^[1]

Supreme Court of Alabama

May 16, 1901

Appeal from chancery court, Perry county; Thomas H. Smith Chancellor.

Bill by L. P. Blackburn and others against J. T. Fitzgerald and others. Demurrer to bill sustained, and bill dismissed, and complainants appeal. Affirmed.

De Graffenried & Evins, for appellants.

J. H Stewart and W. O. Johnson, for appellees.

DOWDELL J.

The sole purpose of the bill in this case is to admit the complainants to come in as parties defendant and to defend in the case of Samuel L. Nelms, administrator of Sydney S Blackburn against J. T. Fitzgerald, administrator of W. H Blackburn, pending in said chancery court of Perry. This last-named bill was filed solely for the settlement of a partnership between the said Sydney S. Blackburn and W. H Blackburn carried on during their lifetime, and it is averred in said bill that the assets of said partnership consisted exclusively of personal property. The complainants in the present bill aver that they are heirs at law of the said W. H. Blackburn, deceased, and that they are beneficially interested in his estate. They also aver that the partnership which at one time existed between the said Sydney S. and W. H., who were brothers, was wound up and settled before the death of the said Sydney S., who died first; and that there is now no unsettled partnership to be wound up and settled. They also aver that the defendant administrator, Fitzgerald, in the former suit has filed an answer to said bill, admitting the existence of an unsettled partnership as charged in said bill. There is, however, no averment or charge that said defendant administrator has ever been notified or requested by these complainants, or either of them, to make the defense of no partnership, against said bill; nor is there any charge of fraud or collusion between said administrators in said suit, nor any averment that the relations between the said administrators are such that it is probable no bona fide effort would be made to defend the suit. In the bill for the settlement of the partnership, the assets of the partnership consisting exclusively of personal property, the administrators of the deceased partners were the only necessary parties. Moore v. Huntington, 17 Wall. 417, 21 L.Ed. 642; Hawes, Parties,§ 25. The relation of the parties, as heirs at law of W. H. Blackburn, deceased, to the administrator of his estate, was that of beneficiaries under a trust, and as such, before they can proceed by bill in equity for the enforcement of equitable rights, they must first move the trustee to act, or show some sufficient reason for the failure to do so. Bailey v. Selden, 112 Ala. 594, 20 So. 854; Arnett v. Bailey, 60 Ala. 435; Bridges v. Phillips, 25 Ala. 136, 60 Am. Dec. 495. In order to maintain such a bill by the beneficiaries, they must aver the facts which bring the case within the exception. Bailey v. Selden, supra; Sullivan v. Lawler, 72 Ala. 73. No sufficient reason is shown by any statement or averment in the bill which would withdraw the complainants from the general rule, and bring them within the exception as laid down in the above authorities. The bill was submitted for decree upon demurrer and motion to dismiss the same for want of equity. There was no consideration of the demurrer by the chancellor, and his decree was rendered on the motion to dismiss the bill; that motion being sustained. It is now contended by appellants that the dismissal of the bill on motion for want of equity was erroneous, inasmuch as the bill might have been amended so as to give it equity; and in support of this contention appellants rely for authority upon the cases of Seals v. Robinson, 75 Ala. 368, 369; Kyle v. Railway Co., 112 Ala. 606, 20 So. 851; Scholze v. Steiner, 100 Ala. 149, 14 So. 552; Bell v. Light Co., 103 Ala. 275, 15 So. 569; Sherer v. Garrison, 111 Ala. 228, 19 So. 988; Hooper v. Railway Co., 69 Ala. 529. In Seals v. Robinson, it was said: "A motion to dismiss for want of equity is not the equivalent of a demurrer, nor is it appropriate to reach mere defects or insufficiencies of pleading curable by amendment, which is matter of right at any time before final decree. It should be entertained only when, admitting the facts apparent on the face of the bill, whether well or illy pleaded, the complainant is without right to equitable relief. When it is apparent, if the facts were well pleaded, a case for relief would exist, the defendant should be put to a demurrer specifying the ground of objection, affording the complainant the opportunity of removing them by amendment,"-citing Hooper v. Railway Co., 69 Ala. 529. The other cases cited above reiterate the same principle. In Scholze v. Steiner, 100 Ala. 152, 14 So. 552, it was held that, where the bill failed to state the facts, but averred conclusions, that it should not be dismissed upon motion, but the defendant should be put to his demurrer, as the bill showed equity on its face, and was open to amendment by averring the facts upon which the conclusions stated were based. In addition to cases already cited, in the following cases the rule as laid down in Seals v. Robinson, supra, has been followed: Glover v. Hembree, 82 Ala. 324, 8 So. 251; Harland v. Person, 93 Ala. 273, 9 So. 379; Pate v. Hinson, 104 Ala. 599, 16 So. 527; South & N. A. R. Co. v. Highland Ave. & B. R. Co., 117 Ala. 395, 23 So. 973; Brown v. Mize, 119 Ala. 10, 24 So. 453; Sullivan v. Vernon, 121 Ala. 393, 25 So. 600; Gardner v. Knight, 124 Ala. 273, 27 So. 298. While cases may be found in which loose expressions occur that a motion to dismiss should not be entertained if the bill is capable of amendment so as to give it equity, yet we have not been able to find any decision by this court that goes to the extent of holding that a motion to dismiss is not the appropriate remedy where, from the averment of facts, whether well or illy pleaded, the bill fails to show equity on its face. The test is not that it is possible for a bill to be amended so as to give it equity, for it is difficult to conceive of a bill which may not be so amended by averment of new or additional independent facts as to impart to it equity. If such were the test, there would be no office for a motion to dismiss for want of equity to perform. But the true test is that laid down in Seals v. Robinson, supra, and the cases following that authority,-if, admitting the facts apparent on the face...