Lyons v. McCurdy

• Decision Date: 11 June 1890
• Citation: 90 Ala. 497,8 So. 52
• Parties: LYONS ET AL. v. MCCURDY.
• Court: Alabama Supreme Court

8 So. 52

90 Ala. 497

LYONS ET AL. v. MCCURDY.

Supreme Court of Alabama

June 11, 1890

Appeal from chancery court, Jefferson county; THOMAS COBBS, Judge.

The bill in this case was filed by the appellee against the appellants. The defendants demurred to the bill for multifariousness, and the chancellor overruled their demurrer. The defendants in the court below bring this appeal, and assign the decree of the chancellor in overruling their demurrer as error.

Lane & White, Mountjoy & Yomlinson, Carroll & Carroll and Smith & Lowe, for appellants.

R H. Pearson and E. K. Campbell, for appellee.

CLOPTON J.

The amended bill is not framed in a double aspect. The kind or degree of relief is not dependent upon the truth of one or the other of two alternatives. The original bill alleges that complainant and defendant Comer were formerly partners under the firm name of "Comer & McCurdy;" that the land in controversy was partnership property, having been purchased by and for the firm, and the deed executed to them as partners; that the firm was dissolved in January, 1884 and at the time of dissolution was indebted to complainant in the sum of $15,000; that the partnership owed no other debts, and Comer sold complainant the land in payment of the amount due him, and put him in possession, but had not executed a deed. The other defendants, who are individual creditors of Comer, in October, 1887, sued out attachments against him, and caused them to be levied on the land as his property, which suits are still pending, except one, in which judgment has been rendered, and an execution issued thereon levied upon the land by the sheriff, who has advertised the same for sale. The only additional facts averred in the amendment are that Comer without the knowledge of the complainant, executed, in January, 1886, a mortgage on his interest in the land to the Alabama National Bank, to secure an individual debt of $5,600, and that complainant, in January, 1887, paid the amount due the bank, and took a transfer and assignment of the note and mortgage. The special relief prayed for in the original bill is that Comer be decreed to make complainant a sufficient deed to his one-half interest in the land; that the cloud cast upon the title of complainant by the levies of the attachments and the execution be removed; and that the plaintiffs in attachment be enjoined from proceeding further to subject the land to their demands. By the amendment the prayer of the original bill is amended so as to ask in the alternative that an account of the partnership transactions be taken, the amount due complainant ascertained, and a lien for its payment be decreed; that the mortgage be foreclosed; and that Comer's interest be ordered to be sold for the payment of the amount ascertained to be due complainant, and the amount due on the mortgage. It is apparent from this statement of the allegations and prayers of the original and amended bills that the alternative character of the amended bill consists only in the alternative prayers. The cardinal rule that alternatives when repugnant and inconsistent, or, when either being true, the complainant is entitled to relief different in kind from that which would be granted were the other true, cannot be introduced into a bill as originally framed, or by amendment, applies to the frame and structure of the stating part. The purpose is to prevent the defendant being surprised or embarrassed in making defense, and to avoid the multiplicity of issues and consequent confusion which would result from uniting in one suit distinct causes of action founded on inconsistent states of facts. A different rule applies when the bill does not set forth alternative statements, but there are alternative prayers. Formerly, when bills in chancery contained only the prayer for general relief, any relief warranted by the facts stated in the bill and proved would be granted; and since it has become the uniform practice to insert a special statement of relief, if the complainant mistakes in his special prayer the proper relief, it may be granted under the general prayer if not repugnant to the special relief prayed, and consistent...