Local Union 18, Marine and Shipbuilding Workers of America, AFL-CIO v. Smith

• Decision Date: 29 November 1962
• Docket Number: 1 Div. 863
• Citation: 274 Ala. 227,147 So.2d 799
• Court: Alabama Supreme Court
• Parties: LOCAL UNION 18, MARINE AND SHIPBUILDING WORKERS OF AMERICA, A. F. OF L.-C. I. O., et al. v. Harry H. SMITH et al.

Page 799

147 So.2d 799

274 Ala. 227

LOCAL UNION 18, MARINE AND SHIPBUILDING WORKERS OF AMERICA, A. F. OF L.-C. I. O., et al. v. Harry H. SMITH et al.

1 Div. 863.

Supreme Court of Alabama.

Nov. 29, 1962.

Vincent F. Kilborn, Mobile, for appellants.

Harry H. Smith and Robt. T. Cunningham, Mobile, for appellees.

COLEMAN, Justice.

This is an appeal, by petitioners for intervention, from a decree granting a motion to strike their petition and denying intervention.

The decree appealed from does not tax the costs, and, for that reason, the appeal must be dismissed. City of Birmingham v. Hallmark, 266 Ala. 582, 98 So.2d 15.

Prior to submission, however, petitioners filed in this court their petition which prays, in the alternative, for an alternative writ of mandamus to review the decree complained of if appeal does not lie. This court, in City of Birmingham v. Hallmark, supra, stated that a decree such as that here complained of can be reviewed by mandamus, and we will review the action of the court on the application for the writ.

This review arises out of the cause which came here on appeal from ruling on demurrer in Smith v. Dunlap, 269 Ala. 97, 111 So.2d 1. The record before us indicates that after the decision on appeal in Smith v. Dunlap, supra, complainant in that suit amended his bill of complaint by dismissing with prejudice as to all respondents except the Alabama Dry Dock and Shipbuilding Company, Inc., a corporation, hereinafter called Alabama, and the Merchants National Bank of Mobile, as Trustee for the Profit Sharing Retirement Plan for the employees of Alabama.

On June 15, 1959, decree was rendered whereby the court ordered the Trustee to pay to Alabama, out of the trust fund, the sum of $199,720.00, and also ordered Alabama to pay to the attorney for complainant the sum of $25,000.00 as a reasonable attorney's fee.

Petitioners assert that they have a right to be made parties to the suit as representatives of the persons who are beneficiaries of the trust, and that the beneficiaries are entitled to the aid of equity to protect the interests of the beneficiaries in the trust estate.

On July 13, 1959, appellants filed their petition which was set down for hearing. Appellee filed a motion to strike appellants' petition, on the ground, among others, that the petitioner or motion did not comply with Equity Rule 37, in that no petition for intervention can be filed until after a motion for leave to file the petition has been granted.

On August 25, 1959, a decree was rendered granting appellee's motion to strike and refusing and denying appellants' petitioner or motion for leave to intervene. This action of the court is assigned as error.

Appellants' petition which was stricken bears the following title:

'MOTION FOR LEAVE TO INTERVENE AND FILE CROSS BILL'

The prayer of appellants' petition recites as follows:

'WHEREFORE, These intervenors file this their petition for leave to Intervene in this cause, to set aside the final decree rendered herein, and, as to the Profit Sharing Plan, annul all former proceedings held with regard thereto in this cause for lack of necessary and indispensable parties, viz.: the participants or beneficiaries in the Plan, and for leave to file an answer and cross bill, demanding trial of the issues of fact and particularly the...