Gary Furniture & Appliance Co. v. Skinner

• Decision Date: 08 June 1972
• Docket Number: 6 Div. 797
• Citation: 288 Ala. 617,264 So.2d 174
• Parties: GARY FURNITURE AND APPLIANCE CO., Inc., et al. v. Arrie B. SKINNER et al.
• Court: Alabama Supreme Court

Page 174

264 So.2d 174

288 Ala. 617

GARY FURNITURE AND APPLIANCE CO., Inc., et al. v. Arrie B. SKINNER et al.

6 Div. 797.

Supreme Court of Alabama.

June 8, 1972.

Speir, Robertson, Jackson & Irons, and Robin H. Harbin, Birmingham, for appellants.

Brown, Pointer & Pointer, Birmingham, for appellee C. S. Brown.

Huey, Stone & Patton, Bessemer, for appellee Arrie B. Skinner.

PER CURIAM.

This is an appeal from a final decree of the Circuit Court of Jefferson County, in Equity, Bessemer Division.

In 1960, Gary Furniture and Appliance Company, Inc., an Alabama corporation (hereinafter for convenience called Gary), was deeded an equity of redemption in a lot situated in the Bessemer Division of Jefferson County. On October 19, 1962, following default in the monthly payments, the mortgage was foreclosed by the mortgagees, I. M. Skinner and his wife, Arrie, and the mortgaged lot was sold by their auctioneer to C. S. Brown.

This litigation was commenced on October 5, 1964, with the filing by Gary, as sole complainant, of a bill in equity against Arrie Skinner, then the widow of I. M. Skinner, and against C. S. Brown, as respondents.

The bill sought to have the foreclosure set aside as having been held at the Bessemer Courthouse rather than the Birmingham Courthouse.

In due course demurrers were sustained. Gary, on February 24, 1965, filed an 'Amendment' which is actually a substituted bill. It is complete within itself. Its opening paragraph reads: 'Comes the Complainant in the above styled cause and with leave of the Court first had and obtained Amends its complaint heretofore filed in this cause to read as follows: . . .' (Emphasis supplied.) Middlebrooks v. Moore-Handley Hardware Co., 209 Ala. 526, 96 So. 410; McGowin v. McGowin, 232 Ala. 601, 169 So. 232; Moates v. City of Andalusia, 254 Ala. 629, 49 So.2d 294; Lyle v. All States Life Ins. Co., 263 Ala. 283, 82 So.2d 255.

Demurrers interposed to the substituted bill were overruled.

Thereafter, the respondent Brown, on October 10, 1967, filed an 'Answer, Pleas and Cross-Bill.' Gary, on October 30, 1967, interposed demurrer to Brown's cross-bill. On November 2, 1967, the respondent Skinner filed an answer to the substituted bill.

Before there was a ruling on Gary's demurrer to Brown's cross-bill, Brown filed 'Amended Answer, Pleas and Cross-Bill.' In his amended answer Brown alleged that Gary 'was dissolved by unanimous consent of its stockholders by instrument dated November 1, 1962 . . .' This was the first mention of Gary's dissolution.

On February 5, 1968, an amendment was filed to the substituted bill for the sole purpose of adding as parties complainant Mrs. Hollie T. Casale, Miss Joy L. Casale and Mr. James E. Casale, alleged to be the owners of all the stock in Gary.

Demurrers interposed by each of the respondents to the substituted bill as thus amended were sustained on May 9, 1969.

On May 22, 1969, a second substituted bill was filed. In the introduction division of that bill it is averred in substance that the Casales, who were sought to be added as parties complainant by the amendment of February 5, 1968, not only owned all of the stock in Gary, but constituted the board of directors of Gary.

It was acknowledged in the second substituted bill that Gary was dissolved on November 1, 1962. It was prayed in that bill, among other things:

'That the complainants (Casales) who are directors of the Gary Furniture and Appliance Company, Inc., a Corporation, and as such its trustees, may be continued as such for such length of time as the Court may decree to be necessary to settle the business and affairs of said corporation and to prosecute this litigation.'

On June 30, 1969, 'the complainants' filed a separate petition wherein it was alleged that Gary had been dissolved on November 1, 1962, and further alleged as follows:

'3. That the above styled litigation was instituted after the dissolution of said corporation and is still pending and involves a substantial part of the assets of said corporation, and the redemption thereof.

'4. That additional time is necessary to complete the litigation of this Bill of Complaint.'

The petition, aside from praying for process and for general relief, prayed:

'. . . and that upon consideration of this petition the Court will order and decree that Gray Furniture and Appliance Company, Inc., a corporation, shall continue to exist as a body corporate to this litigation until all appeals thereof be concluded.'

Thereafter, on July 18, 1969, the respondent Brown filed a motion to strike the petition filed by complainants on June 30, 1969, on the grounds that Gary was dissolved by consent of the stockholders on November 1, 1962, 'under the provisions of Sec. 21(86) of Title 10 (pocket parts) of the Alabama Code,' and that the petition was filed more than five years after the dissolution. On the same day the respondent Brown filed a 'Motion to Abate & Dismiss Action' on substantially the same grounds as were included in his motion to strike the petition.

On August 29, 1969, the respondent Arrie B. Skinner filed a 'Motion to Dismiss,' wherein it was alleged, in effect, that the second substituted bill shows on its face that Gary no longer exists as a legal entity; that the effect of that bill is to substitute certain individuals for the original complainant and that such amendment effects a complete change of parties complainant and works a discontinuance of the action.

Thereafter, on March 19, 1970, although no demurrers had been interposed to the second substituted bill, the trial court rendered a decree sustaining demurrers to the 'bill of complaint as last amended,' in which decree the 'Complainant' was given thirty days within which to plead further.

Within the thirty-day period and on, to wit, March 26, 1970, the trial court found that respondent Brown was entitled to the relief prayed for in his motion to strike complainant's petition filed on May 30, 1969, and his motion to abate the cause of action, and that respondent Skinner was entitled to the relief prayed for in her motion to dismiss the cause of action and thereupon the trial court decree as follows:

'NOW, THEREFORE, it is ORDERED, ADJUDGED and DECREED:

'1. That the motion of respondent, C. S. Brown, to strike the petition filed in this cause by Complainants on May 30, 1969 (June 30, 1969), praying that this Court order and decree that the Gary Furniture and Appliance Company, Inc. shall continue to exist as a body corporate, be granted, and said petition of Complainants be stricken and denied.

'2. That said cause of action be abated and dismissed, with prejudice.

'3. That court costs in this proceeding be taxed against Complainants, for which let execution issue.'

From the decree of March 26, 1970, the complainants appealed to this court.

Five assignments of error have been properly included in the transcript. Supreme Court Rule 1.

Assignment of Error 1 is to the effect that the trial court erred in its decree of May 9, 1969, sustaining the demurrers of the respondents to the complaint as then amended.

Assignment of Error 2 asserts that the trial court erred in rendering its decree of March 19, 1970, which, as shown above, purported to sustain demurrers which had not been filed to the second substituted bill.

The other three assignments of error are to the effect that the trial court erred in rendering the final decree of March 26, 1970, wherein the complainants' petition of June 30, 1969, was stricken and denied and wherein the 'cause of action' was abated and dismissed with prejudice.

Assignment of Error 1 is without merit. In Batson v. Graham, 236 Ala. 72, 181 So. 260, it is said in effect that an appeal from a decree sustaining demurrers to the bill as last amended presents for review that decree only and does not bring up former decrees sustaining demurrers to the original bill or to the bill as theretofore amended.

It is recognized that the appeal in this case is from a decree dismissing the substituted bill and not from an interlocutory becree, as was the situation in Batson. But it was not the decree of May 9, 1969, of which complaint is made in Assignment of Error 1, which precipitated the dismissal. It is also recognized that an appeal could not have been taken from the decree of May 9, 1969, in view of the provisions of Act 72, approved September 15, 1961, Acts of Alabama 1961, Vol. II, p. 1947, carried in the 1969 Cumulative Pocket Parts to Vol. 3 of the 1958 Recompiled Code as § 755, Title 7. But complainants, under the provisions of said Act 72, Supra, could have sought a dismissal and thereby secured a review of the decree of May 9, 1969.

The rule as to pleadings in equity cases which may be reviewed on an appeal from a decree of dismissal, as authorized by Act 72, Supra, is the same as that applicable where a voluntary nonsuit is taken at law.--s 819, Title 7, Code 1940. In Roan v. Associates Discount Corp., 281 Ala. 100, 101--102, 199 So.2d 643, 644, Mr. Justice Simpson, writing for the Court, said in part as follows:

'In reviewing the action of a trial court on an appeal from a judgment of nonsuit, we are limited to a consideration of only such rulings of that court as culminated in and superinduced the taking of the nonsuit. (Authorities cited)

'We have consistently held that where a demurrer to a count is sustained and that count is later amended and a demurrer sustained to the amended count, and a nonsuit is taken, the action of the trial court in sustaining the demurrer to the original count is not before us for review, and we are without authority to review it. The reason for the rule is that if the plaintiff had desired a decision upon the question presented on demurrer to the original complaint, he could have declined to plead further after the demurrer to the original complaint was sustained, and in this way, have presented to us, by way of an appeal from a nonsuit, that question for review. (Authorities...