J. Pollock & Co. v. Haigler

• Decision Date: 25 November 1915
• Docket Number: 3 Div. 180
• Citation: 195 Ala. 522,70 So. 258
• Parties: J. POLLOCK & CO. v. HAIGLER et al.
• Court: Alabama Supreme Court

70 So. 258

195 Ala. 522

J. POLLOCK & CO. v. HAIGLER et al.

3 Div. 180

Supreme Court of Alabama

November 25, 1915

Appeal from Chancery Court, Lowndes County; W.R. Chapman Chancellor.

Suit by J. Pollock & Co. against W.L.C. Haigler and others. From decree for defendants, complainant appeals. Reversed and remanded.

Powell & Hamilton, of Greenville, for appellant.

John R Tyson, of Montgomery, and Jos. R. Bell, of Hayneville, for appellees.

McCLELLAN J.

The decree sustaining the demurrer to the original bill as last amended and dismissing the bill was rendered in vacation; and no opportunity was preserved for the complainant to amend, if so advised. This was error to reverse the decree. Kingsbury v. Milner, 69 Ala. 502; Code, § 3126. Other decisions to like effect are collated in the opinion of two of the justices in Blackburn v. Fitsgerald, 130 Ala. at pages 590, 591, 30 So. 568. The decision in Merritt v. Alabama Pyrites Company, 145 Ala. 252 262, 263, 40 So. 1028, was made to turn in this connection upon the fact that motion to dismiss for want of equity (now abolished [Code, § 3121]), not demurrer, was the means employed to test the pleading. There appears to have been a misapprehension in the Merritt Appeal, supra, of the question presented and decided in Tait v. A.M. Co., 132 Ala. 193, 31 So. 623. That decision is not authority for the ruling made on Merritt's Appeal. On Tait's Appeal the inquiry involved the subject of assumed, anticipated amendment of the pleading assailed on a consideration of the pleading's sufficiency or motion to dismiss and on demurrer. The correctness of a decree rendered in vacation finally dismissing a cause, where the sufficiency of the bill was assailed as there, without opportunity to amend, was not considered or decided in the opinion on Tait's Appeal.

The bill, as last amended, would invoke, at the instance of a simple contract creditor (complainant) of a deceased debtor the powers of a court of equity to enforce discovery, by the executors of the deceased debtor's estate of assets, alleged to be withheld or concealed by the executors, the removal of the estate from the probate court to the court of equity for administration and for relief. Where executors have reported to the probate court that the estate of their testator was insolvent, it is essential that a bill by a creditor seeking the estate's removal into a court of equity for administration should disclose some special ground of equity, to justify or to sustain it. Dolan v. Dolan, 91 Ala. 152, 156, 8 So. 491; Shackelford v. Bankhead, 72 Ala. 476.

There is no matter of "inclusive equitable cognizance" set forth in the bill as last amended. As respects the feature of the bill whereby a right to equity's action to compel a discovery of withheld or concealed assets is sought to be averred, this court, in Shackelford v. Bankhead, supra and in Dolan v. Dolan, supra, long since ruled that the jurisdiction of the probate courts was entirely adequate to serve the purposes...