Friedman v. Fraser

• Decision Date: 30 June 1908
• Parties: FRIEDMAN v. FRASER ET AL.
• Court: Alabama Supreme Court

47 So. 320

157 Ala. 191

FRIEDMAN v. FRASER ET AL.

Supreme Court of Alabama

June 30, 1908

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill by James D. Fraser, administrator, and others, against J. M Friedman, executor. From a decree for complainants, defendant appeals. Reversed and rendered.

McClellan J., dissenting.

Pillans Hanaw & Pillans and McAlpine & Robinson, for appellant.

B. B. Boone, for appellees.

ANDERSON, J.

It is an elementary rule that, before complainant is entitled to relief in equity, he must have no plain and adequate remedy at law. Code 1896, § 638; Yellow Pine Co. v. Sutherland Co., 141 Ala. 664, 37 So. 922, and cases there cited. The bill in the case at bar shows that complainant has a plain and adequate remedy at law for the specific recovery of the bonds, as well as the detached coupons, or that he can get full compensation at law for a conversion of same. The bill does not aver that the bonds are of a peculiar and unique character, so as to render them peculiarly valuable to the complainants; non constat, they have a merchantable and marketable value. Nor does the bill aver insolvency of the respondent, or any other facts essential to equity jurisdiction. Mr. Pomeroy, in his excellent work on Equity Jurisprudence, in discussing the jurisdiction of courts of equity to restore chattels (volume 1,§ 185), says: "Under the second class, where the relief is substantially a recovery of chattels, the jurisdiction embraces suits to compel the restoration or delivery of possession of specific chattels of such peculiar, uncommon, or unique character that they cannot be replaced by means of money, and are not susceptible of being compensated for by any practicable or certain measure of damages, and in respect of which the legal actions of replevin, detinue, or trover do not furnish a complete remedy."

The case of Pattison v. Skillman, 34 N. J. Eq. 344, the one relied upon by the chancellor as supporting the equity of the bill in the case at bar, has no application to the restoration of such chattels as are involved in this case. There it was held that the chancery court had jurisdiction to enforce the restitution of a specific paper writing which had a peculiar, artificial value, and for which adequate compensation cannot be had in an action at law; the document involved being good only to establish the complainant's heirship to a foreign estate, and having no marketable value whatever. Here the bill deals with bonds, not valuable alone to the complainant, but which, according to the averments of the bill, may have a fixed and marketable value ascertainable in a court of law. The bill does not make out a case for an equitable accounting, as it merely sets up a claim on one side and shows no circumstance of complication or difficulty in the way of adequate relief at law. Hulse v. Walker County, 147 Ala. 501, 40 So. 311, and authorities there cited.

The chancellor erred in not sustaining the motion to dismiss the bill for want of equity, and a decree is here rendered sustaining said motion and dismissing the bill.

Reversed and rendered.

TYSON, C.J., and HARALSON, DOWDELL, SIMPSON, and DENSON, JJ., concur.

McCLELLAN J. (dissenting).

It appears from the bill that the complainant is the administrator of the estate of Mrs. Fraser; that certain bonds were issued, in the year 1879, some to Mrs. Fraser and some to Jane Crawford; that Jane Crawford...