Bill by
Charles Henderson and others against J. L. Hall and others.
From a decree for complainants, respondents appeal, and from
a portion of the decree striking from the bill a certain
amendment, complainants prosecute a cross bill. Decree
reversed, and cause remanded on the main appeal, and decree
reversed, and rendered on the cross appeal.
The
defendants Charles Henderson, Jere C. Henderson, Gustavus
Hendricks, and John S. Carroll and Thomas Murphree, partners
using the name of Carroll, Murphree & Co., severally filed a
motion in which they averred that at the time of the filing
of the bill in this case there was pending in the city court
of Montgomery a suit at law by the complainants in this
cause, against the said defendants, to recover of them as
stockholders of the Alabama Terminal & Improvement Company
the amount claimed to be due from them, as such stockholders
as unpaid subscriptions to the capital stock of said Alabama
Terminal & Improvement Company, which said suit, pending in
the city court of Montgomery, was for the same cause of
action as that set out in the bill. The said defendants then
moved the court to order the complainants in this cause to
elect in which of said suits they would proceed, and that
they be required to dismiss the others. This motion was
granted, and the complainants elected to proceed with the
present suit, and dismissed the suit in the city court.
The
said defendants Charles Henderson and others demurred to the
bill, which demurrer was as follows:
"(1)
That said bill is multifarious in this: That it seeks to
enforce a liability against some of the defendants therein
based on contracts, and against other defendants therein
based on torts. (2) That said bill is multifarious in this
It joins separate and distinct causes of action of
different natures, in which the several defendants alone
are interested, and which call for relief of separate and
distinct natures, in this: Said bill seeks to recover
against the defendants Charles Henderson, Jere C
Henderson, O. C. Wiley, and Wiley & Murphree on their
several contracts of subscription to the capital stock of
the Alabama Terminal & Improvement Company, for the amount
claimed to be unpaid thereon, and also seeks to recover
against defendants J. D. Henderson, admr. of L. Henderson,
surviving partner of L. & W. J. Henderson, Jas. M.
Henderson & Co., Gustavus Hendricks, John S. Carroll and
Carroll, Murphree & Co., on account of certain torts
averred against them severally, by which it is claimed they
wrongfully and unlawfully came into possession of certain
bonds issued by the Alabama Midland Railway Company, and
which were the property of the Alabama Terminal &
Improvement Co., and which it is alleged so came into the
possession of said several defendants under separate and
distinct fraudulent agreements or arrangements between them
severally and J. W. Woolfolk, president of the Alabama
Terminal & Improvement Co., with which said fraudulent
agreements or arrangements it is not shown that the other
defendants first herein mentioned had any connection. (3)
The said defendant Chas. Henderson further separately
demurs to said bill as amended on the following grounds:
First. The said bill seeks to recover against him, on an
alleged contract of subscription made by him to the capital
stock of the Alabama Terminal & Improvement Co., for the
amount unpaid thereon, and also seeks to recover certain
moneys of the said Alabama Terminal & Improvement Co.,
alleged to have been wrongfully and unlawfully paid to this
defendant by J. W. Woolfolk, president of said company; and
also seeks to recover against this defendant on account of
an alleged tort in this, that the said defendant is in the
wrongful possession of certain bonds issued by the Alabama
Midland Railway Company, and which were the property of the
Alabama Terminal & Improvement Co., and alleged to have
been wrongfully and fraudulently delivered to this
defendant by J. W. Woolfolk, president of said Alabama
Terminal & Improvement Company, for which said bonds the
said bill seeks a recovery as for a conversion, and the
relief sought in respect of said several matters is
different and inconsistent. (4) The said J. C. Henderson
further separately demurs to said bill of complaint as
amended, and assigns the following grounds, to wit: First.
That said bill as amended seeks to recover against this
defendant on a contract of subscription made by him to the
capital stock of the Alabama Terminal & Improvement Co., on
the ground that said subscription is unpaid as alleged in
the original bill, and also seeks to recover against this
defendant upon an alleged additional subscription to the
capital stock of said company made by this defendant as
alleged in the bill as amended, which last right of
recovery is based upon an alleged fraudulent transfer of
said subscription by this defendant from one Baltzell; and
said bill as amended further seeks to recover against this
defendant on account of an alleged tort in this, that this
defendant is alleged to have wrongfully and fraudulently
come into the possession of certain bonds issued by the
Alabama Midland Railway Co., which was the property of the
Alabama Terminal & Improvement Co., and that such
possession was acquired by unlawful and fraudulent
agreements made between this defendant and one J. W.
Woolfolk as president of said Alabama Terminal &
Improvement Co., and the relief sought by said bill against
this defendant on account of said several transactions is
of different and inconsistent nature. Second. Said bill is
multifarious in this, that it seeks to recover against this
defendant on account of the alleged claims and liabilities
against him separately, and also against the other
defendants named in said bill on account of the several
transactions alleged against them, and this defendant is
not shown to have had any connection with said last-named
transaction, nor are the other defendants shown to be
connected in any manner with the said transaction alleged
in respect to this defendant. (5) All of the defendants
separately and severally further demur to said bill of
complaint as amended on the further ground, to wit: First.
It appears from the averments of said bill that the
complainants have a full and complete and adequate remedy
at law against each of said defendants severally. Second.
The said defendants demur separately to that portion of the
bill of complaint as amended as seeks to recover against
the defendants on account of their several alleged
contracts of subscription to the capital stock of said
Alabama Terminal & Improvement Co., on the ground that it
appears from the averments of said bill that complainants
have a full, complete, and adequate remedy at law against
each of said defendants severally. (6) Said defendants
further severally demur to said bill of complaint as
amended on the following ground, to wit: There is a
misjoinder of parties defendant in this, that the cause of
action alleged against each defendant separately is one in
which neither of the other defendants has any connection or
interest."
The
defendants Oliver C. Wiley and Wiley & Murphree each filed
the following pleas: "These defendants, further
answering, say and aver by way of plea, as well as answer to
the bill of complaint filed in this cause, that complainants
ought not to further prosecute this action, for that, to wit
during the year 1893, these complainants commenced a suit, by
process of garnishment, in the city court of Montgomery,
Alabama, against these defendants, respectively, involving
the very matter and thing embraced in this present bill of
complaint now pending in this honorable court, to wit,
involving the very question as to whether or not the said
Oliver C. Wiley and the firm of Wiley & Murphree, a
partnership composed of Oliver C. Wiley and Clarence
Murphree, were indebted to the Alabama Terminal & Improvement
Company by reason of their having executed certain
subscription notes to the capital stock of the said the
Alabama Terminal & Improvement Company; and these defendants
aver that the indebtedness thus sought to be established in
said suit, in the said city court of Montgomery, is the very
liability now sought to be enforced in said bill against
these defendants, if in fact any such liability exists for
unpaid subscriptions to the capital stock of the said the
Alabama Terminal & Improvement Company; that at the fall
term, 1893, of said city court of Montgomery, these
defendants filed a written answer, under oath, to the writ of
garnishment in said suit, on said city court of Montgomery, a
copy of which answer is hereto attached, and marked Exhibit
No. 1, and asked to be deemed and taken as a part of this
plea; that, upon the filing of said answer [[Exhibit No. 1]
plaintiffs in said suit [complainants here] objected to said
answer upon the ground that the same was not sufficiently
full and explicit; and thereupon at the same term of the city
court of Montgomery, these defendants filed two other answers
under oath in said suit, copies of which are hereto attached,
marked Exhibit No. 2 and Exhibit No. 3, and asked to be
deemed and taken as a part of this plea; that thereupon, at a
subsequent term of the said city court of Montgomery, these
defendants, to wit, O. C. Wiley and the said Wiley &
Murphree, were by the judgment of said city court duly and
legally discharged upon their sworn answers as aforesaid, and
were allowed to go hence; that all of this occurred prior to
the filing of the bill of complaint in the present...
