First Nat. Bank v. Johnson

• Decision Date: 01 June 1933
• Docket Number: 6 Div. 243.
• Citation: 227 Ala. 40,148 So. 745
• Parties: FIRST NAT. BANK OF BIRMINGHAM v. JOHNSON et al.
• Court: Alabama Supreme Court

148 So. 745

227 Ala. 40

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

6 Div. 243.

Supreme Court of Alabama

June 1, 1933

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Creditor's bill by the First National Bank of Birmingham against Crawford Johnson, Sr., R. G. Jones, W. A. Jones, P. D Pritchett, and W. R. Young, as partners doing business as Coca Cola Bottling Company of West Blocton, and W. R. YoungHarry K. Young, and W. J. Jones, individually.From a decree sustaining pleas in abatement and dismissing the bill without prejudice, complainant appeals.

Affirmed.

Murphy Hanna, Woodall & Lindbergh, of Birmingham, for appellant.

Martin Thompson, Turner & McWhorter, of Birmingham, for appellees.

FOSTER Justice.

This is a creditors' bill by a simple contract creditor to vacate a sale made by its debtor of certain property, and that it be subjected to the satisfaction of the debt.Section 7342, Code.The question we have is one of venue.The debtor is W. R. Young, and his grantee is his son Harry K. Young, both of whom reside in Bibb county.

The property sought to be subjected is the partnership interest of W. R. Young in the Coca Cola Bottling Company of West Blocton, also in Bibb county.That interest is alleged to be approximately 11 2/3 per cent. of the whole.The names of four others are given as the other partners (making five in all), one of whom resides in Jefferson county, Ala., where the suit was filed, and one in Tennessee, and the others in Bibb county, Ala.

The Bibb county residents pleaded in abatement that it was not filed in the proper district, for that the Jefferson county resident was not shown to be a material party, as provided by section 6524, Code.Upon the determination of that claim hinges the result.

It has often been held that, in order to fix the venue by the residence of a material partydefendant, he must have been really interested in the suit, and that a decree against him is sought, so that his interest is in a sense antagonistic to that of complainant; in other words, a necessary rather than a merely proper party.Lewis v. Elrod,38 Ala. 17;Harwell v. Lehman, Durr & Co.,72 Ala. 344;Gay, Hardie & Co. v. Brierfield, C. & I. Co.,106 Ala. 615, 17 So. 618;Puckett v. Puckett,174 Ala. 315, 56 So. 585;Ex parte Fairfield-Amer. Nat. Bank, 223 Ala. 252, 135 So. 447.

The main purpose and theory of a creditors' suit is to subject the property of the debtor to the satisfaction of the debt, and to remove obstructions such as fraudulent conveyances.

The sufficiency of the bill is not here involved except for the purpose of determining its nature and character so as to ascertain who are necessary parties to such a bill.As we have said, it seeks to vacate a sale of the interest of W. R. Young in the partnership and to have an accounting and settlement of the partnership business; that such interest be ascertained and condemned to the satisfaction of the debt, and for general relief.A partner's interest is subject to levy and sale under execution, after which the purchaser may go into equity, have a partnership dissolution and the interest which he acquired at the sale delivered to him on a settlement and accounting.Farley, Spear & Co. v. Moog,79 Ala. 148, 58 Am. Rep. 585;Daniel v. Owens,70 Ala. 297;Steiner v. Peters Store Co.,119 Ala. 371, 24 So. 576.

When a court of chancery takes jurisdiction for one purpose, it will extend that jurisdiction so as to do complete justice, in respect to matters which directly result from its decree.But, when the decree thus leads to collateral issues, the venue is said not to be controlled by the residence of those who are necessary parties to such collateral relief, but have no interest in the main matter of controversy.Puckett v. Puckett, supra.It is held also that, when the right is against a tenant in common, the other tenants are not necessary parties, unless the entire property is sought to be divided, sold, or otherwise affected.Burke v. Josiah Morris & Co.,121 Ala. 126, 25 So. 759;Millsap v. Stanley,50 Ala. 319.

But, if the right and purpose of complainant is to separate the share of his debtor from that of the other shareholders, and thereby cause a division of the jointly owned property, all the shareholders are necessary to accomplish that completed relief.Martin v. Carter,90 Ala. 96, 7 So. 510.Under such circumstances, all the shareholders occupy a position antagonistic to one another, in the sense of the authorities cited.

The primary right of complainant in this suit is to subject the partner's share to sale for the debt after vacating the conveyance.This may be done without a partnership dissolution and settlement, or it may lead to that result dependent upon whether the purchaser at the...