Tri-State Corp. v. State ex rel. Gallion

• Decision Date: 30 March 1961
• Docket Number: TRI-STATE,3 Div. 914
• Citation: 128 So.2d 505,272 Ala. 41
• Parties: CORPORATION, INC. et al. v. STATE of Alabama ex rel. MacDonald GALLION, Attorney General.
• Court: Alabama Supreme Court

Page 505

128 So.2d 505

272 Ala. 41

TRI-STATE CORPORATION, INC. et al. v. STATE of Alabama ex rel. MacDonald GALLION, Attorney General.

3 Div. 914.

Supreme Court of Alabama.

March 30, 1961.

Hamilton, Denniston, Butler & Riddick and Van Antwerp & Rector, Mobile, for appellants.

MacDonald Gallion, Atty. Gen., Willard W. Livingston, Nicholas S. Hare, Jos. D. Phelps and Robt. M. Hill, Jr., Asst. Attys. Gen., for appellee.

LIVINGSTON, Chief Justice.

This is an appeal from a decree of the Circuit Court of Montgomery County, Alabama, in Equity. The original bill of complaint was filed on December 24, 1958, by appellee, the State of Alabama ex rel. John Patterson, as Attorney General of the State of Alabama.

The following are named as respondents: Robert Folsom, Individually and as Director of the Department of Conservation of the State of Alabama; James E. Folsom, Individually and as Governor of the State of Alabama; the Tri-State Corporation, Inc., an Alabama Corporation; George Trawick, a nonresident of the State of Alabama; James L. Segrest, Individually and as Chief of the Division of State Parks, Monuments, and Historical Sites of the Department of Conservation of the State of Alabama.

The bill of complaint seeks to have a lease contract by and between the State of Alabama, as lessor, and the appellant, Tri-State Corporation, Inc. (hereinafter called Tri-State), as lessee, rescinded, set aside, cancelled and held for naught. A copy of this lease and a copy of the amendment thereto are attached to and made a part of the bill of complaint as Exhibits 'A' and 'B.' The bill of complaint further seeks to have a sublease by and between the Tri-State Corporation, Inc., as sublessor, and one George Trawick, as sublessee, covering a portion of the premises leased by the Tri-State Corporation, Inc., from the State of Alabama, rescinded, cancelled, set aside and attached to the bill of complaint and made attached to the bill of complaint and made a part thereof as Exhibit 'D.' The bill of complaint also seeks an accounting between Tri-State Corporation and the State of Alabama.

In addition to the relief sought by the bill of complaint upon final hearing of this cause, as set out above, the bill prayed that the court would issue a temporary injunction enjoining, restraining and prohibiting the respondents, their agents, servants, employees, successors in office, sublessees, subcontractors, and all other officers, employees of the State of Alabama, and all other persons in active participation with said respondents from entering into any sublease or subcontract or other agreement covering the leased premises, or any portion thereof, or performing any acts thereon in furtherance or in accordance with said agreement until further order of the court; and, second, enjoining all of said respondents below from modifying, altering or in any way changing the aforesaid lease agreements, or entering into any subsequent lease, or sublease, or subcontract covering the premises described in the aforesaid lease and sublease until the further orders of the court. The original bill of complaint is verified by John Patterson.

On the date the bill of complaint was filed, December 24, 1958, the Circuit Court of Montgomery County, Alabama, issued a temporary restraining order and injunction as prayed for in the bill of complaint.

On January 28, 1959, the respondents, Tri-State Corporation, Inc., and George Trawick filed demurrers to the bill of complaint. These demurrers were amended on May 1, 1959. On the 29th day of January, 1959, James L. Segrest filed demurrers to the bill of complaint, and on the 5th day of May, 1959, these demurrers were also amended.

On April 3, 1959, Tri-State Corporation, James L. Segrest and George Trawick filed their answer to the bill of complaint.

On May 25, 1959, by consent of the parties, MacDonald Gallion, Attorney General of the State of Alabama, was substituted as complainant for John Patterson, as Attorney General of the State of Alabama, Patterson having become the Governor of Alabama on the 19th day of January, 1959, and MacDonald Gallion having become the Attorney General of the State of Alabama on the same date. On the same date, complainant moved the court to strike James E. Folsom and Robert Folsom, both individually and in their official capacity, as parties respondent. This motion was apparently not ruled on by the court.

On the 29th day of May, 1959, the Tri-State Corporation, James L. Segrest and George Trawick, separately and severally, moved the court to discharge the temporary injunction and also moved to dissolve said injunction issued in said cause on, to wit, December 24, 1958.

On November 12, 1959, on motion of the complainant and agreement of the parties, William C. Younger, Individually and as Director of the Department of Conservation, was substituted for Robert Folsom, Individually and as Director of the Department of Conservation; and John Patterson, Individually and as Governor of the State of Alabama, was substituted for James E. Folsom, Individually and as Governor of the State of Alabama, in the bill of complaint as parties respondent. On the same date, William C. Younger and John Patterson filed an answer accepting service of the bill of complaint and admitting the allegations thereof; consented to the temporary injunction theretofore issued in said cause, and joined in the prayer of the bill of complaint.

On November 12, 1959, the cause was submitted and heard by the trial court on the bill of complaint as amended, temporary injunction theretofore decreed by the court, the motion to discharge and motion to dissolve the injunction, motion to strike portions of the bill, amended demurrer to the bill and sworn answer of the respondents, together with sworn affidavits of the complainant and respondents.

On the 13th day of January, 1960, the court entered a decree denying the motion to discharge and the motion to dissolve the temporary injunction; granted respondents' motion to strike portions of the bill of complaint; and overruled the amended demurrers of respondents, Tri-State Corporation and George Trawick, to the bill of complaint as amended.

From this decree, Tri-State Corporation, George Trawick and James L. Segrest, the Chief of the Division of State Parks, Monuments and Historical Sites of the Department of Conservation, appealed.

First, it is insisted by appellants that Montgomery County is not the proper venue for this action.

If the averments of a bill in equity show on its face that it is filed in the wrong venue, a demurrer to the bill on that ground is proper practice and should be sustained. Ex parte Morton, 261 Ala. 581, 75 So.2d 500; Faulk v. Faulk, 255 Ala. 237, 51 So.2d 255; State v. Stacks, 264 Ala. 510, 88 So.2d 696; Tigrett v. Taylor, 180 Ala. 296, 60 So. 858; Hammons v. Hammons, 228 Ala. 264, 153 So. 210.

It is insisted by the appellants that neither Robert Folsom, as Director of the Department of Conservation, nor James E. Folsom, as Governor of the State of Alabama, are necessary parties. We cannot agree

There are many cases in Alabama defining a necessary and indispensable party to a bill in equity. We think a few quotations from these cases to be sufficient. In Mathison v. Barnes, 245 Ala. 289, 16 So.2d 717, 719 the late Justice Bouldin quoted from the case of Hodge v. Joy, 207 Ala. 198, 92 So. 171, the following excerpts:

"To be a necessary and indispensable party to a bill in whose absence the court will not proceed to a final decree, one 'must have a material interest in the issue which will be necessarily affected by the decree' before it will be said the court may not proceed in his absence.' * * * "To constitute a necessary and indispensable party to a bill, in whose absence the court will not generally proceed to a decree, he must have a material interest in the issue which will be necessarily affected by the decree." * * * .'

In Wilder v. Crook, 250 Ala. 424, 34 So.2d 832, 834, we quoted from the case of First National Bank of Birmingham v. Johnson, 227 Ala. 40, 148 So. 745, as follows:

"It has often been held that, in order to fix the venue by the residence of a material party defendant, he must have been really interested in the suit, and that a decree against him is sought, so that his interest is in a sense antagonistic to that of complainant; in other words, a necessary rather than a merely proper party. * * *'

'See also Lewis v. Elrod, 38 Ala. 17; Harwell v. Lehman, Durr & Co., 72 Ala. 344; Gay, Hardie & Co. v. Brierfield Coal & Iron Co., 106 Ala. 615, 17 So. 618; Puckett v. Puckett, 174 Ala. 315, 56 So. 585; Ex parte Fairfield-American Nat. Bank, 223 Ala. 252, 135 So. 447.'

The bill of complaint alleges that the Governor and the Director of the Department of Conservation are residents of Montgomery County. The lease agreement was executed and approved by them in their official capacity and exhibited to the bill. The Conservation Director, acting in his official capacity on behalf of the state, has continuing functions under the lease, and all of which are subject to the approval by the Governor in his official capacity. The Director of the Department of Conservation and the Governor have a continuing responsibility for state lands and as such are continuing materially interested in any disposition of state lands. To reach all parties having a continuing function under the lease contract and to maintain the status quo pending this litigation, it was necessary that the Director of Conservation and the Governor, whoever they may be, be made parties respondent. Injunctive relief is prayed for in the bill of complaint against the Director of Conservation and granted against him as such Director of Conservation. It is clear enough, therefore, that the Director of Conservation (whoever he may be) is a material defendant within the meaning of the venue statute. It is also to be noted that the injunction order is...