Hall v. Alabama Terminal & Improvement Co.

• Decision Date: 13 November 1894
• Court: Alabama Supreme Court
• Parties: HALL v. ALABAMA TERMINAL & IMP. CO. ET AL.

16 So. 439

104 Ala. 577

HALL v. ALABAMA TERMINAL & IMP. CO. ET AL.

Supreme Court of Alabama

November 13, 1894

Appeal from chancery court, Montgomery county; Jere N. Williams, Judge.

Bill in equity filed by Joseph L. Hall against the Alabama Terminal & Improvement Company and others, for himself and any of defendant's other creditors who should desire to become parties, seeking to subject certain subscriptions to the capital stock of that company, made by its codefendants, to the payment of a judgment in his favor. Certain of the defendants pleaded, as a bar to plaintiff's right to recover, that there was pending an action of the same nature, instituted by another creditor of defendant company, A. A. Wiley. From a decree sustaining defendants' plea, complainant appeals. Reversed.

W. A. Gunter and Tompkins & Troy, for appellant.

Roquemore & White and Thorington & Chilton, for appellees.

COLEMAN, J.

This appeal is prosecuted from the decree of the chancery court sustaining the sufficiency of a plea filed by appellees to the bill of appellant. There is but one question argued by counsel for appellees, and but one principle involved in this appeal; and that is whether a pending creditors' bill, filed by the complainant for himself and all other creditors who may see proper to come in and make themselves parties before a decree has been rendered in the cause, can be pleaded in bar to another bill filed by a creditor of the same debtor, and who has not made himself a party to the other proceeding. No case has been cited by counsel for appellees in support of the contention, and we presume none can be found. In 2 Daniell, Ch. Pl. & Pr. §§ 1615, 1616, it is stated that "there is no instance, however, in which a creditor at law has ever been stopped, unless there was a decree giving him an absolute and unconditional right to come in and prove his debt at once." In 1 Story, Eq. Jur. § 549, the rule is thus stated: "As soon as the decree to account is made in such a suit, *** and not before, the executor is entitled to an injunction, etc." (Italics are ours.) See, also, 4 Am. & Eng. Enc. Law, 580. We deem it unnecessary to accumulate authorities. The court erred in holding that the plea was sufficient. Reversed and remanded.

BRICKELL, C.J., not sitting.