Merchants' Bank of Mobile v. Zadek

• Decision Date: 22 December 1921
• Docket Number: 1 Div. 189.
• Citation: 207 Ala. 84,91 So. 815
• Parties: MERCHANTS' BANK OF MOBILE ET AL. v. ZADEK ET AL.
• Court: Alabama Supreme Court

91 So. 815

207 Ala. 84

MERCHANTS' BANK OF MOBILE ET AL. v. ZADEK ET AL.

1 Div. 189.

Supreme Court of Alabama

December 22, 1921

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Bill by Elizabeth G. Zadek and others against the Merchants' Bank of Mobile and others, for discovery and an accounting as to the affairs of the E. O. Zadek Jewelry Company. From a decree overruling demurrers to the bill, respondents appeal. Affirmed.

Smiths Young & Leigh, of Mobile, for appellants.

Frederick G. Bromberg and Sullivan & Stallworth, all of Mobile, for appellees.

MILLER J.

This cause was submitted on motion to strike out the assignments of error, and on the merits. The rule is complied with if the appellant states concisely in writing upon the transcript in what the error consists. Code 1907, p. 1506, rule 1, Supreme Court.

The errors assigned by appellant are sufficiently definite and precise. They show the ruling of the court at which the appellants complain. They are in writing upon the transcript. They state concisely in what the error consists. The motion to strike out the assignments of error is overruled. Amerson v. Coronoa Coal Co., 194 Ala. 175, 69 So 601.

This is the third time this cause has appeared in this court on decree on demurrers either to the bill of complaint as originally framed or as amended. We find it first in 203 Ala 518, 84 So. 715 (Merchants' Bank of Mobile v. Zadek), and next in 204 Ala. 396, 85 So. 552. It is here now on demurrers to the bill of complaint as last amended. The court overruled the demurrers, and this decree is assigned as error.

The facts, appearing from the pleadings are clearly stated in the opinion on the first appeal, and it is not necessary to repeat them here. 203 Ala. 518, 84 So. 715. In the first opinion it was declared that the bill contained equity for an accounting to redress the alleged individual wrongs of complainant and others, as composition creditors of the E. O. Zadek Jewelry Company, a corporation, but that the corporation was a necessary party to the suit. The opinion intimated that the bill was probably multifarious by complainant seeking also as a stockholder of the Zadek Jewelry Company to redress alleged wrongs to the corporation. 203 Ala. 518, 84 So. 715.

In the second opinion, 204 Ala. 396, 85 So. 552, it was declared that complainant, a composition creditor of the Zadek Jewelry Company, a corporation, who was also a stockholder of the corporation, could not in the same bill seek redress for individual wrongs and wrongs against the corporation; no circumstances authorizing it being shown. The corporation alone could enforce whatever rights of redress it had; and neither its composition creditors nor its stockholders could do so. The bill as then amended was pronounced multifarious by that opinion. Zadek v. Merchants' Bk. of Mobile et al., 204 Ala. 396, 85 So. 552.

The bill has been again amended. The appellants insist that it is still multifarious. It seeks an accounting of the business by the respondents, the banks, as trustees of the E. O. Zadek Jewelry Company, growing out of the composition settlement under bankruptcy proceedings of the jewelry company, and requiring the trustees from the proceeds of the sale of...