Hogan v. City of Huntsville

• Decision Date: 29 June 1972
• Docket Number: 8 Div. 464
• Citation: 264 So.2d 155,288 Ala. 595
• Parties: Wilton H. HOGAN, etc. et al. v. The CITY OF HUNTSVILLE, a Municipal Corporation, et al.
• Court: Alabama Supreme Court

Page 155

264 So.2d 155

288 Ala. 595

Wilton H. HOGAN, etc. et al. v. The CITY OF HUNTSVILLE, a Municipal Corporation, et al.

8 Div. 464.

Supreme Court of Alabama.

June 29, 1972.

Dieter J. Schrader, Huntsville, for appellants.

Lanier, Shaver & Herring, and James E. Davis, Jr., Huntsville, for appellee.

MERRILL, Justice.

This appeal is from a decree dated November 23, 1971, dismissing appellants' bill of complaint after it had been amended several times. All argued assignments of error relate to the decree of November 23, which was rendered after oral argument and submission of briefs.

Originally, the bill of complaint purported to be a class action pursuant to Equity Rule 31, brought by complainant Hogan against the City of Huntsville. The bill averred that the City maintains a Natural Gas Board, a Water Works Board and an Electric Utilities Board and these Boards supply gas, water and electricity to the inhabitants of Madison County; that the City charges the customers and consumers a security deposit of $10.00 for electricity, $15.00 for gas and $5.00 for water; that the security deposits are retained by the City until the customer ceases purchasing utilities from the City, in which case, the security deposits are refunded to the customers without payment of interest during the period in which they were held by the City.

The complainants prayed that the court declare that the City breached an implied agreement to pay interest when the customers contracted for the services of the utilities, and asked that the amount of money due Hogan and customers in his class be determined and to fix and determine the amount to be paid to complainants' solicitor for attorney's fees.

The City filed a 'plea of abatement and/or motion to dismiss the bill,' along with 'Exhibit A' which was attached and incorporated therein. On June 16, 1971, the court entered a decree sustaining the plea in abatement. The complainants amended by filing a bill for a declaratory judgment for a declaration of rights, which averred the same facts as in the original bill by adding that the customers, when making applicaton for the furnishing of utilities, are required to sign an application agreement which fails to apprise the customer that his deposit is non-interest bearing; that, however, upon having executed said agreement and upon having made the security deposit, he received a deposit receipt which provides that his deposit is 'non-interest bearing.' The City again filed its plea in abatement and/or motion to dismiss and, on September 8, complainants again amended their bill alleging that the allegations raised a constructive trust or implied trust for the benefit of the complainants. The City again filed a plea in abatement and/or motion to dismiss. The court dismissed the bill on November 23, 1971.

Appellee's so-called 'PLEA IN ABATEMENT--MOTION TO DISMISS' is a peculiar pleadng. It contains 63 grounds which includes general and special grounds of demurrer, pleas and possibly an answer. However, we consider the document not by the name it bears, but as a demurrer and are concerned with only three grounds, namely '14. There is no equity in the bill'; '44. For aught appearing there is no justiciable controversy existing between the parties hereto' and '47. The allegations do not justify the relief sought.' It is not a plea in abatement.

Ordinarily, a declaration of rights is not made on demurrer in a declaratory judgment proceeding, and a demurrer to such a bill or petition is properly overruled when a justiciable controversy is presented. Bass v. Sanders, 282 Ala. 546, 213 So.2d 391, and cases there cited. But here, there is doubt as to whether a justiciable controversy is presented.

In City of Mobile v. Scott, 278 Ala. 388, 178 So.2d 545, this court said:

'There is now no justiciable controversy in this case and this court will not make a declaration in a declaratory judgment proceeding which will be futile. This court will not render a purely advisory opinion nor decide moot questions under the guise of a declaratory judgment. Homan v. Beard, 268 Ala. 22, 104 So.2d 914.

'It is the general rule that appellate courts do not sit to give opinions on moot questions or abstract propositions. Our authorities are also to the effect that it is not customary to decide moot questions merely to ascertain who is liable for costs. Lewis v. Head, 238 Ala. 151, 189 So. 886.'

If a bill does not in any respect show an equitable right, it is not error to dismiss it ex mero motu, without provision for amendment. Caudle v. Cotton, 234 Ala. 126, 173 So. 847, and cases there cited.

Under Equity Rule 14, the motion to dismiss for want of equity is abolished. But if a bill lacks equity, it cannot support a decree for relief and so, even if there is no demurrer attacking the bill for want of equity, we must look to see if the bill under consideration contains equity. Edmondson v. Martin, 256 Ala. 73, 53 So.2d 613; Howle v. Alabama State Milk Control Board, 265 Ala. 189, 90 So.2d 752....