Ratliff v. Nowery

• Decision Date: 01 October 1931
• Citation: 136 So. 895,102 Fla. 1072
• Parties: RATLIFF et al. v. NOWERY et al.
• Court: Florida Supreme Court

136 So. 895

102 Fla. 1072

RATLIFF et al. v. NOWERY et al.

Florida Supreme Court

October 1, 1931

Commissioners' Decision.

Creditors' bill by Sarah J. Nowery, as administratrix of the estate of S.E. Nowery, deceased, and another, against J. A. Ratliff and wife and others. From an order overruling separate demurrers by J. A. Ratliff and wife and another and by the Baker-Holmes Realty Company, the defendants appeal.

Order affirmed.

Syllabus by the Court.

SYLLABUS

While there is no positive inflexible rule as to what in a court of equity constitutes multifariousness that would be fatal to a bill on demurrer, broadly speaking, it may be defined as the improperly joining in one bill distinct and independent causes or parties, such as uniting in the same bill distinct and disconnected causes or joining in the same suit parties without connection or common interest in the subject-matter being litigated.

Creditors of the same debtor, each of whom is entitled to resort to equity, although their claims are severable and distinct may, when other requirements are met, join in a creditors' bill.

The very nature and purpose of a creditors' bill is to avoid a multiplicity of suits by permitting several creditors although having unrelated claims, to join in one suit, where the relief sought and the defenses interposed are substantially the same.

Convenience in the administration of justice being the particular object sought by creditors' bill, an objection for multifariousness should not be sustained, if justice can be accomplished by the mode of procedure adopted.

In proceeding by creditors' bill, persons indebted to the defendant, or holding money or property in which he has an interest, or holding evidence of security for same, may be also made defendants without the bill being multifarious even though the bill should pray for discovery and relief against several who are not united in interest or may be strangers to each other.

A real estate mortgage, being merely a lien upon lands, is not subject, under Florida statutes, to the lien of an execution at law, although it may be a proper subject for a creditors' bill in equity. Appeal from Circuit Court, Polk County; Harry G. Taylor, judge.

COUNSEL

Edwards & Marchant, of Lakeland, and Baker, Baker & Rutherford, of Jacksonville, for appellants.

Rogers & Rogers and H. E. Oxford, all of Lakeland, for appellees.

OPINION

ANDREWS C.

Appellees, as complainants below, filed their creditors' bill in the circuit court of Polk county against appellants, as defendants below, which seeks a decree adjudging that each of the conveyances made by J. A. Ratliff and wife to the Ratliff Holding Company, a corporation was made to the said company without consideration, that grantee acquired no title thereto, and that in equity the said company should be decreed to be holding said property in trust. The bill alleges that J. A. Ratliff is also the owner and holder of a mortgage executed by W. W. Chase and wife and Frank H. Thompson and wife in the sum of $3,750; also the owner and holder of a certain mortgage given to him in the sum of $19,800 covering four named blocks in the city of Lakeland executed by the Baker Holmes Realty Co. The bill seeks to have such interest as may now be owned by defendant J. A. Ratliff in said mortgages applied by the court to the payment of complainants' judgments.

The bill of complaint alleges that Samuel E. Nowery, now deceased, brought suit against J. A. Ratliff on the first of the series of said notes aggregating $3,500 and interest thereon; that there was a return nulla bona on the execution issued on the judgment entered on said first note; that complainant Sarah J. Nowery, as administratrix of the Estate of Samuel E. Nowery, brought suit on other notes of the same series against J. A. Ratliff, and, at the time of filing creditors' bill herein, these notes had not been reduced to judgment; that complainants are now the owners and holders of judgments on the notes referred to; and that same remain in full force and effect, and that the same with interest thereon are still unsatisfied.

The two complainants joined in this suit seek to have the court declare void as a fraud against them as creditors the deeds executed by J. A. Ratliff and wife without consideration to the Ratliff Holding Company; also to have subjected to their judgment any amounts due J. A. Ratliff on the said mortgages above referred to.

To the creditor's bill, a demurrer was filed jointly by J. A. Ratliff and wife and Ratliff Holding Company, and a separate demurrer was also filed by Baker-Holmes Realty Company. The demurrers were each overruled, from which appeal was taken.

Appellants state that the main question presented here for review, upon which appellants rely for reversal, is that the bill of complaint is multifarious (1) as to parties complainant; (2) as to causes of action; and (3) as to parties defendant.

In the case of Murrell v. Peterson, 57 Fla. 480, 49 So. 31, this court said:

'While the rule as to 'multifariousness' may, generally speaking, be said to be 'one very much of convenience,' and while there may not be 'any positive inflexible rule as to what, in the sense of a court of equity, constitutes multifariousness, which is fatal to a suit on demurrer,' yet, broadly speaking, 'multifariousness' in a bill may be defined as 'the improperly joining in one bill distinct and independent matters, and thereby confounding them.' There are at least two general and distinct forms of multifariousness, one consisting in uniting in the same bill distinct and disconnected subjects, matters, or causes; the other consisting in joining in the same suit, either as complainants or defendants, parties who are without a common interest in the subject of the litigation and have no connection with each other. Whenever multifariousness plainly appears in a bill, it is ground for demurrer.'

Where complainants in an equity proceeding have a common interest in the subject of the litigation, and have some relation to each other growing out of the common interest, and the allegations of the bill are of a single distinct equity as to which the specific relief is prayed against a single defendant, the bill is not multifarious. Arcadia Mercantile Co. v. Branning, 59 Fla. 428, 52 So. 588; Richardson v. Gaither, 70 Fla. 145, 69 So. 699.

In the case of Murrell v. Peterson, supra, in speaking of what may constitute multifariousness in equity proceedings, this court quoted with approval from Shields v. Thomas, 18 How. 253, 259, 15 L.Ed. 368, that:

'There is, perhaps, no rule established for the conducting of equity pleadings, with reference to which * * * there has existed less of certainty and uniformity in application than has attended this relating to multifariousness.'

The opinion then quotes from Mr. Justice Story:

'The conclusion to which a close survey of the authorities will conduct us seems to be that there is not any positive inflexible rule as to what, in the sense of a court of equity, constitutes multifariousness, which is fatal to a suit on demurrer.'

The above decisions of this court have reference to bills in chancery generally. The rule as to creditors' bill is even more relaxed.

Whether or not it is multifarious as a creditors' bill as to parties complainant, it is observed that the complainants each had filed actions at law on promissory notes and obtained judgments at law against J. A. Ratliff, and that executions issued thereon had been returned nulla bona. It is well settled that...