Shelton v. Timmons
| Decision Date | 30 June 1914 |
| Docket Number | 642 |
| Citation | 189 Ala. 289,66 So. 9 |
| Parties | SHELTON et al. v. TIMMONS. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.
Bill by Mary R. Timmons against Minnie Shelton and others to follow and subject to complainant's demand certain money alleged to have been fraudulently donated to respondents by complainant's debtor, and incidentally for discovery. Decree overruling demurrers to the bill, and respondents appeal. Affirmed.
Frank S. White & Sons, of Birmingham, for appellants.
Harsh Beddow & Fitts and W.R. Chambers, all of Birmingham, for appellee.
The primary purpose of the bill of complaint is to follow and subject to complainant's demand the proceeds of money fraudulently donated by complainant's debtor to several of his nieces, who are made parties defendant. This is an independent equity, and of itself suffices for the maintenance of the bill. Dickinson v. National Bank, 98 Ala. 546, 14 So. 550.
It is not necessary that such a bill should be sworn to, even though it pray also for a discovery by the defendants of the property in which they have invested the money fraudulently transferred to them. Such discovery is incidental and auxiliary merely, and the equity of the bill is in no wise dependent thereon. Plaster v. Throne F. Shoe Co., 123 Ala. 360, 365, 26 So. 225; Montgomery Iron Works v Cap. City Ins. Co., 137 Ala. 134, 146, 34 So. 210; Burke v. Morris & Co., 121 Ala. 126, 25 So. 759.
Where the equity of the bill rests upon discovery alone, the bill must, of course, be sworn to. In this case a verification being unnecessary, no question can be raised as to its sufficiency.
So also, the allegations necessary to support an independent bill for discovery (see King v. Livingston Mfg. Co., 60 So. 143) are not required, where the discovery sought is in aid merely of another and primary equity. Chrichton v. Hayles, 176 Ala. 223, 57 So. 696; Virginia, etc., Co. v. Hale & Co., 93 Ala. 542, 546, 9 So. 256. In the latter case any defendant may be called upon to disclose matters which are relevant to the issue, and legally admissible as evidence.
As amended, the bill sufficiently charges as a fact, on information and belief, that the defendants used the money in question in the purchase of real estate, the description of which is unknown to complainant.
The bill is not defective in omitting the personal representative of complainant's deceased debtor as a party defendant. Davis v. Stovall, 64 So. 586; Staton v. Rising, 103 Ala. 454, Bank v. McGee,
108 Ala. 306, 19 So. 356; Coffey v. Norwood, 81 Ala. 512, 8 So. 199; Reed v. Minell, 30 Ala. 61; Inge v. Boardman, 2 Ala. 331.
In Harris v. Moore, 72 Ala. 507, it was...
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Julian v. Woolbert
... ... Reilley's will would be a proper, but not a necessary, ... party to the instant bill. Shelton v. Timmons, 189 ... Ala. 289, 66 So. 9; Merchants' Nat. Bank of ... Tuscaloosa v. McGee, 108 Ala. 304, 19 So. 356; ... McClarin v. Anderson, 104 ... ...
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Montgomery v. Montgomery
...nor are the allegations necessary to support an independent bill for discovery required in a bill of this character. Shelton v. Timmons, 189 Ala. 289, 66 So.9.' Here the bill contained an independent equity and the discovery relative to the income from the property was merely incidental and......
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Tuskegee Homes Co. v. Oswalt
... ... discovery are not required when the discovery is sought in ... aid of another and primary equity. Shelton v ... Timmons, 189 Ala. 289, 66 So. 9; Hale v. Cox, ... 233 Ala. 573, 173 So. 82; Cleveland Storage Co. v. Guardian ... Trust Co., supra ... ...
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Cleveland Storage Co. v. Guardian Trust Co., 4 Div. 517.
...and the discovery is sought as auxiliary to such equitable relief, it is not necessary that it be verified by affidavit. Shelton v. Timmons, 189 Ala. 289, 66 So. 9; Plaster v. Throne-Franklin Shoe Co., 123 Ala. 360, 365, 26 So. 225. When discovery is necessary in aid of a claim which is pur......