Caheen v. First Nat. Bank

• Decision Date: 28 February 1935
• Docket Number: 6 Div. 634.
• Citation: 159 So. 815,230 Ala. 105
• Parties: CAHEEN et al. v. FIRST NAT. BANK OF BIRMINGHAM.
• Court: Alabama Supreme Court

159 So. 815

230 Ala. 105

CAHEEN et al. v. FIRST NAT. BANK OF BIRMINGHAM.

6 Div. 634.

Supreme Court of Alabama

February 28, 1935

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Bill in equity by the First National Bank of Birmingham, as executor and trustee under the will of Fernand Caheen, deceased, and the same under the will of Salvador Caheen, deceased, against Julien S. Caheen, Maurice Caheen, Camille Klotz, Raymond M Klotz, and Marcelle Klotz Hagerdon. From a decree overruling demurrer to the bill, respondents appeal.

Affirmed in part, and in part reversed, rendered, and remanded.

Peyton D. Bibb and A. Leo Oberdorfer, both of Birmingham, for appellants.

Cabaniss & Johnston and L. D. Gardner, Jr., all of Birmingham, for appellee.

BROWN Justice.

This appeal is from the interlocutory decree entered on August 10 1934, overruling the separate demurrers of appellants to the bill as last amended; therefore the soundness of the decree of March 30, 1934, holding the plea filed by Julien and Maurice Caheen to the original bill insufficient and striking the same, is not within the scope of this appeal.

Moreover, the statute, Code 1907, § 2838, authorizing appeals from interlocutory decrees "overruling a demurrer to a bill in equity, or sustaining or overruling a plea to such bill," was amended by the Act approved March 17, 1915 (Acts 1915, p. 137), limiting the right of appeal from interlocutory decrees to such decrees "overruling a demurrer to a bill in equity, or to a cross bill," omitting the provision for appeals from such decrees "sustaining or overruling a plea to such bill." Code 1923, § 6079.

While the statute, Code 1923, § 6645, does not obviate the necessity of showing that all complainants joining in a bill for relief are entitled to relief, and a failure to do so renders the bill subject to demurrer for misjoinder ( Staples et al. v. Barret et al., 214 Ala. 680, 108 So. 742, 46 A. L. R. 1084), nevertheless the bill as last amended, and as for that matter, the bill as originally filed, was not subject to that objection.

There was but one complainant, the First National Bank of Birmingham, suing to protect its "personal interest," by asking the court to guide it in the administration of the estates, the interests of which were so blended that it was necessary to proceed under both wills at once. Carter et ux. et al. v. Balfour's Adm'r, 19 Ala. 814; Clark, Adm'r, v. Head, Adm'r ad litem, 75 Ala. 373.

Nor was the attitude of the parties changed by the amendment which attempted to make the bank as the executor and trustee under the will of Fernand Caheen, deceased, a party defendant. The bank could not be both a complainant and at the same time a defendant. It could not sue itself. McLane v. Spence, Adm'r, 6 Ala. 894.

It may be noted that the original bill alleges that the administration of both estates had been duly removed from the probate court to the circuit court, in equity, for further administration; while the amended or substituted bill merely alleges that the estate of Salvador Caheen had been so removed; but this omission, in view of the averments of the bill that much of the property belonging to the two estates was jointly owned by the two brothers, and the necessity for proceeding under both wills in their administrations, did not materially affect the right of the bank to seek the instructions of the court. In the circumstances, the jurisdiction and powers of the probate court were inadequate. Clark, Adm'r, v. Head, Adm'r ad litem, supra.

The removal of the estate into the circuit court gave that court full jurisdiction and obviated the objection that the bill was without equity, if this objection had been well grounded. Forman v. McAnear, 219 Ala. 157, 121 So. 538; Strange et al. v. King et al., 228 Ala. 511, 154 So. 115; Irwin v. Irwin, 227 Ala. 140, 148 So. 846; Dent et al. v. Foy et al., 206 Ala. 454, 90 So. 317; Hinson v. Naughter et al., 207 Ala. 592, 93 So. 560.

Nor was the bill subject to the objection of multifariousness. Hunley et al. v. Hunley, 15 Ala. 91.

The most serious objection made by the appellants is that the bill seeks an accounting as to dealings between the two brothers as partners, and the objection is that the averments are so meager that neither the parties whose interests are affected, nor the court, is sufficiently advised as to the basis or the extent that such accounting is sought.

On the other hand, the appellee insists that the bill does not seek an accounting, and therefore this objection must fall.

The bill avers:

"At the time of the death of Fernand Caheen and for a long time prior thereto Fernand Caheen and Salvador Caheen were the sole partners in a partnership known as Caheen Brothers. Attached hereto and made a part hereof, marked Exhibit C, is a copy of Articles of Partnership entered into between Fernand Caheen and Salvador Caheen, on, to-wit, the 4th day of September 1896. Under the terms of said partnership agreement, the said partnership was to be terminated on the 1st day of September 1898. Notwithstanding the said provision for the termination of said partnership, it continued in existence until it was terminated by the death of Fernand Caheen on the 16th day of September 1932. Section two of the partnership agreement above referred to provides that said business and its

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