Gordon v. Central Park Little Boys League

• Citation: 119 So.2d 23,270 Ala. 311
• Decision Date: 10 March 1960
• Docket Number: 6 Div. 92
• Parties: Robert S. GORDON and Fair Park Little League, Inc. v. CENTRAL PARK LITTLE BOYS LEAGUE.
• Court: Supreme Court of Alabama

Page 23

119 So.2d 23

270 Ala. 311

Robert S. GORDON and Fair Park Little League, Inc. v. CENTRAL PARK LITTLE BOYS LEAGUE.

6 Div. 92.

Supreme Court of Alabama.

March 10, 1960.

Robt. S. Gordon and Chas. Cleveland, Birmingham, for appellants.

Grover S. McLeod, Birmingham, for appellee.

COLEMAN, Justice.

Appellee, an unincorporated association, filed bill in equity against 'Robert S. Gordon, Fair Park Little League, Inc., a Corporation, and B. R. Williams, Trustee.' From a decree overruling demurrer to the bill, Robert S. Gordon and the corporate respondent have appealed.

The subject matter of the suit is 121 baseball uniforms. The relief sought is a declaratory judgment to the effect that respondents have no right, title, or interest in the uniforms and a temporary injunction restraining the prosecution of two actions at law then pending in the Intermediate Civil Court of Birmingham. The two actions are discussed below.

After hearing, the temporary injunction was granted, and a subsequent motion to dissolve or discharge the same was overruled.

Appellants filed a plea in abatement to which appellee demurred. The demurrer was sustained.

Appellants propounded interrogatories to appellee and later filed a motion to dismiss the bill for failure of appellee to answer the interrogatories. Appellants' motion to dismiss was overruled.

The averments of the bill necessary to an understanding of the case are as follows:

The members of the appellee association are adult residents of the Central Park area in the western section of Jefferson County. The association was formed January 12, 1955, and named 'Fair Park Little League.' A copy of the constitution of Fair Park Little League is made an exhibit to the bill, and the stated objective is to implant the ideals of sportmanship, honesty, loyalty, courage, and reverence in the boys of the community. Provision is made for election of officers and government of the affairs of the association.

The purpose of the association was to furnish facilities and leadership so that boys aged 9 to 12 years might play baseball. The association affiliated itself with 'Little League Baseball, Inc.,' of Williamsport, Pennsylvania, for one season. Funds were solicited and equipment, including the uniforms in dispute, was purchased with the funds donated. The constitution provided that 'The Commissioner shall be the sole owner. The commissioner shall be responsible to the board of directors * * * for the properties of the league.' B. R. Williams was the Commissioner. After the 1955 baseball season, the uniforms had been placed in the shop of Fairfield Dry Cleaning Company for cleaning and storage.

On October 9, 1955, at a meeting of officers and members, called for the purpose of discussing the issue of segregation, a motion was placed before the directors and members as to whether they wished to affiliate with 'Little League, Inc.,' which was encouraging 'integration,' or with 'Little Boys League, Inc.' of South Carolina, which was encouraging separation of the races. A copy of the minutes of the meeting are made exhibit to the bill. The minutes show that after discussion, a vote was taken by families who had boys playing ball, one vote to a family. The result was '26 to 6 to franchise' with the South Carolina organization.

On November 28, 1955, the directors voted unanimously to change the name of the association to Fair Park Little Boys League and to affiliate with Little Boys Baseball, Inc., in 1956.

On December 5, 1955, 'Organizational Meeting' was held at which officers were selected for the 'New Fair Park Little Boys Baseball League.'

A further meeting was held March 6, 1956, at which the 'League Name Announced Originally As Fair Park Little Boys League Changed To Central Park Little Boys League.' A copy of minutes of each of the last three meetings is set out below.

On March 30, 1956, a detinue suit, No. 90401, was filed by Fair Park Little League, Inc., a Corporation, apparently the corporate appellant, against the dry cleaning company, claiming title to the 121 uniforms. The dry cleaner disclaimed ownership, and B. R. Williams, apparently the respondent described as trustee, filed affidavit that he was legal owner of the property in dispute.

On April 16, 1956, in Case No. 86480, in the same Intermediate Court, styled Robert S. Gordon v. B. R. Williams, Robert S. Gordon levied execution on the uniforms to satisfy his judgment against Williams. That judgment is alleged to be a personal judgment against Williams and in no way pertained to appellee or to Williams as trustee of said property. The bill avers that Robert S. Gordon was attorney for plaintiff in Case No. 90401, and is a director of 'Little League, Inc.'

On May 7, 1956, the original bill of complaint was filed in the instant case.

Assignment of Error 13 asserts that the court erred in overruling respondents' Motion to Dismiss complainant's Bill of Complaint for failure to answer interrogatories. The right to appeal is statutory. Tarvin v. Tarvin, 266 Ala. 214, 95 So.2d 397. We find no statutory authority allowing an appeal from a decree overruling a motion to dismiss for failure to answer interrogatories propounded under Equity Rule 39(a), Title 7, Appendix, Code 1940, which is cited by appellants to support the error here assigned. Rosenau v. Powell, 173 Ala. 123, 55 So. 789, also cited by appellants, was an appeal from a final decree. No final decree has been rendered in the case at bar. The only statutory authority for appeals from interlocutory decrees in equity is that given by § 755, Title 7, Code 1940. Tarvin v. Tarvin, supra. An appeal will not lie from an order or decree overruling a motion to dismiss. Mabry v. Dickens, 31 Ala. 243; Ex parte Little, 266 Ala. 161, 95 So.2d 269. If no provision is made by law for an appeal from an interlocutory decree, such decree may not be assigned as error on appeal from another interlocutory decree. Forgleman v. National Surety Co., 222 Ala. 265, 132 So. 317; Land v. Cooper, 244 Ala. 141, 12 So.2d 410. We cannot, therefore, on the present appeal consider Assignment of Error 13.

Assignment of Error 14 asserts that the court erred in overruling the motion to dissolve the temporary injunction. The motion to dissolve was overruled July 17, 1956. No appeal was taken from that order. An appeal from such an order must be taken within 30 days. Title 7, § 757, Code 1940, as interpreted in the cases of Trump v. McDonnell, 112 Ala. 256, 20 So. 524, and State v. Seminole Bottling Co., 235 Ala. 217, 178 So. 237; Francis v. Scott, 260 Ala. 590, 72 So.2d 93. The instant appeal was taken October 22, 1956, and comes too late as an appeal from an interlocutory order overruling a motion to dissolve or discharge a temporary injunction. Moreover, on appeal from a decree overruling a demurrer to a bill in equity, the appellant cannot assign as error an interlocutory decree rendered over thirty days before the appeal was taken. Foley v. Leva, 101 Ala. 395, 13 So. 747; Kyser v. American Surety Co. of New York, 213 Ala. 614, 105 So. 689; McCary v. Crumpton, 263 Ala. 576, 83 So.2d 309. On this appeal we cannot review the order overruling the motion to dissolve the temporary injunction.

Assignment of Error 15 asserts that the court erred in sustaining demurrer to respondents' plea in abatement. The proper method of testing the sufficiency of a plea to a bill in equity is to set it down for hearing and have the court make an order as to whether it is sufficient. Bullen v. Bullen, 231 Ala. 192, 164 So. 89; Little v. Little, 249 Ala. 144, 30 So.2d 386, 171 A.L.R. 1399. If, however, the order sustaining the demurrer be treated as a proper one holding the plea insufficient, it is not appealable and is not subject to assignment of error on the present appeal from the interlocutory order overruling the demurrer to the bill. Westbrook v. Inglenook First Methodist Church, 262 Ala. 652, 80 So.2d 726; Cates v. Cates, 264 Ala. 628, 89 So.2d 69.

Assignments of Error 16, 17, and 18 assert that the court erred in ordering the issuance of the temporary injunction. The record shows that on presentation of the application for temporary injunction to the circuit court judge on May 8, 1956, he ordered the same set for hearing May 17, 1956. The same was reset for June 13, 1956, and on that day an order was made granting the injunction as prayed for. The judge apparently undertook to follow the procedure provided for by § 1054 et seq., Title 7, Code 1940. Section 1057, Title 7, Code 1940, provides that from an order granting or refusing injunction, '* * * an appeal will lie * * * within ten days * * *.' As we have already indicated, ten days after June 13, 1956, had long since expired before the instant appeal was taken on October 22, 1956. For the reasons already stated with respect to Assignment of Error 14, we cannot, on the present appeal, review the order granting the temporary injunction.

Assignments of Error 1 to 12 assert that the court erred in overruling the demurrer to the bill. Appellants argue two propositions to sustain the demurrer. First, appellants say the allegations of the bill fail to show that appellee is the beneficial owner of the uniforms, and, Second, the averments of the bill fail to show appellee's right to proceed in equity instead of at law.

The second proposition is without merit. The averments of the bill show that title and right to possession of the property in suit were reposed in the respondent Williams for the benefit of the association entitled to use of the property.

'In its simplest elements a trust is a confidence reposed in one person, by and for the benefit of another, with respect to property held by the former, for that other's benefit. The person in whom this confidence is reposed and who holds the title to the property in question is the trustee; and the person for whose benefit the property is so held by the trustee is the cestui que trust, or, as...