Ex parte Holzer

• Decision Date: 04 April 1929
• Docket Number: 6 Div. 274.
• Citation: 219 Ala. 431,122 So. 421
• Parties: EX PARTE HOLZER.
• Court: Alabama Supreme Court

122 So. 421

219 Ala. 431

EX PARTE HOLZER.

6 Div. 274.

Supreme Court of Alabama

April 4, 1929

Rehearing Denied May 30, 1929.

Original petition of Arnold Holzer for mandamus to Hon. Roger W Snyder, as Judge of the Circuit Court of Jefferson County. Writ granted.

Leader & Ullman and David R. Solomon, all of Birmingham, for appellant.

McClellan & Stone and C. C. Nesmith, all of Birmingham, for appellee.

BROWN J. (after stating the facts as above).

When a case is transferred from the law docket of the circuit court or vice versa, on motion of one of the parties, though the statute provides that the order transferring the case may be assigned as error on appeal from the final judgment or decree, it is the settled rule here, if the order is erroneous, this does not afford the party aggrieved an adequate remedy to correct the error, and that mandamus is the appropriate remedy. Smith v. Grayson, Circuit Judge, 214 Ala. 197, 107 So. 448, Ex parte L. & N. R. R Co., 211 Ala. 531, 100 So. 843.

The statute requires that the motion "shall state the substance of the equitable right and be verified by the affidavit of some person having knowledge of the facts, and the legal sufficiency of such motion may be tested by demurrer," etc. Code of 1923, § 6489. (Italics supplied.)

While the statute is remedial in character and will be liberally construed so as to effectuate its purpose, it clearly contemplates that the motion shall state the equitable right or defense asserted, with the same precision and certainty in averment as is required to state such right in a bill in equity. If this was not so, the court, in passing on a demurrer to the motion, would be without rule, compass, or guide to determine whether or not the averments are sufficient. This seems to have been the interpretation given the statute in the decisions here, though not specifically so stated. Ex parte L. & N. R. R. Co., 211 Ala. 531, 100 So. 843; Pieme v. Arata,

202 Ala. 427, 80 So. 811; Nunnally Co. v. Bromberg & Co., 217 Ala. 180, 115 So. 230; Ellis v. Drake, 203 Ala. 457, 83 So. 281.

The motion to transfer in the instant case is rested on two grounds: First, that the defendant, after the suit was filed, with a design to hinder, delay, or defraud the plaintiff, conveyed certain property; the grantees in the conveyance having notice or knowledge of the pending suit.

If it should be conceded that the averments are sufficient to show that the plaintiffs as common creditors of the defendant may proceed in a court of equity to set aside these conveyances and subject the property to the payment of their claim, yet we are of opinion that this is not such equitable right as affords ground for the transfer of the cause to the equity docket.

The scope and purpose of the statute, Code of 1923, § 6489, authorizing the plaintiff in an action at law to assert an equitable right as a basis for such transfer, is to relieve him from mistake, in the first instance in selecting the forum in which his case should be brought. The equitable right must inhere in the cause of action stated, and must not be merely incidental thereto, such as reaping the fruits of the litigation after his claim is established.

If the defendant, Arnold Holzer, was in fact and law the tenant of the premises and liable for the rent provided in the lease, the plaintiff has not mistaken the forum in which his case belongs, and the remedy at law is plain and adequate to the end of establishing his liability and obtaining the ordinary legal process for the enforcement of plaintiff's demand, and the alleged equity is not an obstacle to the rights asserted in the action at law.

The other ground of the motion is that the contract sued on is in fact the contract of Steiner as executor of the estate of B Holzer, deceased, and was executed by Arnold Holzer as the agent and representative of the executor, and therefore the plaintiffs are entitled to proceed in equity to have the contract reformed so as to hold the estate, or the executor in his...