Comer v. Birmingham News Co.

• Decision Date: 22 November 1928
• Docket Number: 6 Div. 192
• Citation: 118 So. 806,218 Ala. 360
• Parties: COMER et al. v. BIRMINGHAM NEWS CO.
• Court: Alabama Supreme Court

118 So. 806

218 Ala. 360

COMER et al. v. BIRMINGHAM NEWS CO.

6 Div. 192

Supreme Court of Alabama

November 22, 1928

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by the Birmingham News Company against J. McDonald Comer and another, as executors of the will of B.B. Comer deceased, and others. From a decree overruling a demurrer to the bill, respondents appeal. Affirmed.

London Yancey & Brower, of Birmingham, Wm. B. & C.C. Inge, of Mobile, and Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellants.

R.B Evins, of Birmingham, for appellee.

ANDERSON C.J.

The only attempt of the pleader in the present bill to establish a case for an equitable accounting is upon the theory that, while the accounts are not mutual and are all on one side, they involve matter of great complication and difficulties in the way of adequate relief at law. Mr. Pomeroy lays down the rule, which has often been approvingly quoted by this court, that a party is entitled to an equitable accounting notwithstanding the nonexistence of other grounds, "where the accounts are all on one side, but there are circumstances of great complication, or difficulties in the way of adequate relief at law." Our court, in dealing with cases of this character, has laid down the rule that a bill in equity for an accounting, where the account to be examined is on one side only, and no necessity for a discovery is shown, and no discovery is prayed for, cannot be maintained, unless there is so great a complication in the matter of accounts as to render the remedies at law inadequate; and, in such case, a mere general allegation that the account is complicated, without showing in what respect, is insufficient. Pollak v. H.B. Claflin Co., 138 Ala. 644, 35 So. 645; Beggs v. Edison Electric Co., 96 Ala. 295, 11 So. 381, 38 Am.St.Rep. 94. The bill in the case at bar does not rely upon a mere general averment of complication, but sets up the matter or facts rendering the account complicated. The bill charges:

"Complainant further avers that among the accounts payable, are several thousand accounts for prepaid subscriptions to the newspaper published by the corporation whose stock was the subject of said contract, that is, that several thousand, to-wit, seven thousand persons, firms or corporations had subscribed for said newspaper for various periods of time extending beyond February 28, 1927, and had paid in advance for the full term of said subscription, and that said corporation

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