Singo v. Brainard

• Court: Alabama Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Singo v. Brainard, 173 Ala. 64, 55 So. 603 (Ala. 1911)
• Decision Date: 17 May 1911
• Parties: SINGO ET AL. v. BRAINARD.

55 So. 603

173 Ala. 64

SINGO ET AL. v. BRAINARD.

Supreme Court of Alabama

May 17, 1911

Rehearing Denied June 8, 1911.

Appeal from City Court of Montgomery; William H. Thomas, Judge.

Suit by Will Singo and others against M. D. Brainard. From a decree sustaining demurrers to the amended bill, complainants appeal. Reversed, rendered, and remanded.

Warren S. Reese, for appellants.

Goodwyn & McIntyre, J. Winter Thorington, and A. A. Evans, for appellee.

ANDERSON J.

This case on former appeal is reported in 164 Ala. 353, 51 So 522. It was there held that the bill was without equity, and the demurrer for want of equity was sustained, but there was no formal decree of this court dismissing the bill; the cause being remanded to the lower court.

As we understand the amendment to the bill, it does not attack the decree of the probate court for fraud; for, while it sets up fraudulent acts and omissions on the part of respondent Brainard, in and about the defense and prosecution of the probate proceeding, it does not charge the beneficiaries under said decree, or the parties to the cause, with such conduct as would vacate the decree for fraud. It does aver, however, that the respondent Brainard, while still the attorney and trustee for the complainants, purchased the subject of the litigation (the land) for a sum greatly less than its value, and that said purchase should inure to the benefit of his clients, these complainants.

It can be safely stated as a sound and salutary legal principle that, so long as the relationship of client and attorney exists, the attorney is a trustee for his client in and about the cause or the subject thereof, and any trade that he makes or benefits he may derive, resulting from the litigation or a sale of the subject of the litigation, will inure to the benefit of the client, the cestui que trust. This is a rule so wholesome and just that citation of authority is needless, and it would be difficult to find an authority in any jurisdiction of respectable standing holding to the contrary. The amended bill avers that Brainard was the attorney of the complainants up to and at the time of the purchase of the land by Parker, and that Parker was in fact acting for and in behalf of Brainard.

It has been suggested in brief of counsel that Jury Fritz, who was interested in the estate of Singo, but who did not employ Brainard, should have been made a party to this cause. Whether she is or is not a necessary party, either as complainant or respondent, we need not determine, as this question is not properly presented for our consideration. "The general rule is that, if a bill is defective for the want of proper parties, advantage should be taken of the defect, by plea, demurrer, or answer, and, if not taken the objection is waived. The rule is subject to the exception that if the cause cannot be properly disposed of, on the merits, without the presence of the absent parties, the objection may be made at the hearing, or on error it may be taken by the court ex mero motu." Prout v. Hoge, 57 Ala. 28; 3 Mayfield's Digest, p. 258, §§ 1503, 1504. We are not considering this case upon the merits, but upon an appeal from an interlocutory decree, rendered on May 21st, sustaining the respondent's demurrers, of date May 20, 1910, to the amended bill. The demurrers so considered and sustained contain no ground for want of proper parties.

It is next insisted that the error of the city court in sustaining the demurrer to the amended bill can be tolled upon the theory that the amendment was not properly allowed, that the previous decree of this court in sustaining the demurrer for want of equity operated ipso facto as a dismissal of the bill, and that it could not be amended after remandment. It is needless for us to enter into the discussion of a distinction between a motion to dismiss for the want of equity and a general demurrer for want of equity, or to imagine all that was in the legislative mind when making the change in the statute as it appears--section 3121 of the Code of 1907. For a discussion of this subject, we refer to chapter 15, Sims' Chancery Practice, which is not only interesting and instructive, but can be read with profit by the bench and bar. It is sufficient to say that, whether they are or are not similar methods of testing the equity of the bill, the sustaining of the demurrer without more does not operate as a final decree dismissing the bill. Rose v Gibson, 71 Ala. 35; Lide v. Park, 132 Ala. 222, 31 So. 360; McCrory v. Guyton, 154 Ala. 355, 45 So. 658. A decree sustaining a demurrer, but not dismissing the bill, is but an interlocutory decree covered by section 2838 of the Code of 1907, and is not a final decree, as is contemplated by section 2837. Whether or not the mere sustaining of a motion to dismiss for want of equity without a further order or decree dismissing the bill would be a final decree we need not determine, as there could be drawn a very decided distinction between a decree sustaining a motion to dismiss a bill and one sustaining a demurrer. The former seeks affirmatively to strike or get rid of the bill; while the latter merely questions the sufficiency of same, leaving it for the court to determine whether or not the decree sustaining same should be followed up with an order of dismissal. It is questionable, however, whether or not the mere sustaining of a motion to dismiss a bill for want of equity, not followed up with a decree actually dismissing the bill, would be a final decree, as section 2838 of the Code of 1907 (section 427 of the Code of 1896) makes such a decree an interlocutory one, and not a final decree, as mentioned in the preceding section. If, therefore, the lawmakers considered it a final decree, it would have been covered by section 426, and there was no need to put it in section 427, Code of 1896. True, if the decree went beyond merely sustaining the motion and dismissed the bill, it would become a final decree and governed by section 426 of the Code of 1896, but if the motion was...