65 So. 815 | Ala. | 1914
From a decree sustaining the demurrer to the bill complainant brings this appeal. The purpose of the bill seems to he the cancellation of certain notes of complainant payable to one Elfrieda Ahlrichs. The respondent is made a party to the suit both as an individual and “as executor of the last .will and testament of Alvin Ahlrichs, deceased.”
Construing the pleadings most strongly against the pleader, as is the well-understood rule, the bill does not show that this respondent either as an individual or in his representative capacity has the possession or control of the notes sought to be canceled. They were payable to Elfrieda Ahlrichs, and under the above rule of construction it would seem the court is justified in holding the bill shows such payee to have the custody and control thereof. The payee is not made a party to the cause.
The respondent is, as above stated, made a party in his representative capacity as executor. No relief whatever against him as such is sought.
There are assignments of demurrer taking these points, and they were clearly well taken.
There is nothing in the case of Southern States Fire & Casualty Co. v. Whatley, 173 Ala. 101, 55 South. 620, indicating to the contrary of this conclusion, hut, upon the other hand, we think it supports the same. The sole and exclusive purpose here seems to he the cancellation of the notes, and relief is sought against one who is not shown to have the possession or control thereof, and who is not the payee, and against whom, as executor, no relief is sought.
The learned chancellor in his opinion criticizes the bill as “vague and indefinite.” We think a reading of the hill will disclose that this criticism is also entirely justified.
Affirmed.