Globe Iron Roofing & Corrugating Co. v. Thatcher

• Court: Supreme Court of Alabama
• Writing for the Court: MCCLELLAN, J.
• Citation: 87 Ala. 458,6 So. 366
• Decision Date: 19 June 1889
• Parties: GLOBE IRON ROOFING & CORRUGATING CO. v. THATCHER ET AL.

6 So. 366

87 Ala. 458

GLOBE IRON ROOFING & CORRUGATING CO.
v.
THATCHER ET AL.

Supreme Court of Alabama

June 19, 1889

Appeal from chancery court, Morgan county; THOMAS COBBS, Chancellor.

Bill in equity by the Globe Iron Roofing & Corrugating Company against the Decatur Iron Bridge & Construction Company and others to enforce a mechanic's lien, and also as an unsecured creditor to set aside conveyances on the ground of fraud. The defendant bridge company was insolvent, and had, before this bill was filed, conveyed certain property to defendants Thatcher and others, who were made parties defendant. Defendants' demurrers to the bill were sustained. Complainant appeals.

Kirk & Almon, for appellant.

R. C. Brickell, for appellees. [6 So. 367]

MCCLELLAN, J.

The bill in this case is filed in a double aspect. In one view the claim sought to be enforced is that of a lienor under section 3018 et seq., of the Code; in the other the right relied on is that of a simple contract creditor. In one aspect it is sought only to enforce the demand of the complainant; in the other it is sought to subject the property of the Decatur Bridge Company to the satisfaction of the claims of other creditors as well as the complainant. In the phase of the case first presented the effort is to subject only certain town lots belonging to the bridge company to the satisfaction of a particular debt; in the phase last presented in the bill the effort is to subject not only these lots, but all the property of the defendant company, to the satisfaction, not only of the complainant's debt, but also of the debts of all other bona fide creditors. By one set of averments it is attempted to make a case in which complainant's claim will be held superior to certain conveyances made by the bridge company to, or which inured to the benefit of, the other defendants; by other allegations the attempt is made to have these conveyances-which in this part of the bill are treated as nominally superior to complainant's claim-declared void as to the debt of complainant and other bona fide creditors. It thus appears that whether regard be had either to the character or amounts of the claims involved in the respective aspects of the bill, or to the quantity of property to be effected by the decree, or to the character or extent of the relief sought in the two presentments of the cause of action, there is a manifest dissimilarity, repugnance, and inconsistency in and between the two parts of the bill of complaint.

The cardinal requirement with respect to bills framed in the alternative is that each alternative must entitle the complainant to precisely the same relief in kind, if not in degree, so that, if the bill be confessed, the court, in decreeing the relief prayed on one state of facts, would also respond and grant the relief appropriate to the alternative state of facts. That the relief which would be appropriate to either of the alternatives of this bill would be entirely inappropriate to the other we entertain no doubt. Lehman v. Meyer, 67 Ala. 403; Micou v. Ashurst, 55 Ala. 607; Heyer v. Bromberg, 74 Ala. 528; Gordon v. Ross, 63 Ala. 363; Moog v. Talcott, 72 Ala. 210.

The complainant was an original contractor within the meaning of the statute giving to mechanics and material-men liens on buildings or improvements to the...