Avery v. Ware

58 Ala. 475 | Ala. | 1877

BBICKELL, 0. J.

The statements of the bill are, in effect, that the complainant, who is appellant here, and the appellee Jonathan Ware, were judgment creditors of Alexander Yarner, having the same attorney. The judgments were for unequal amounts; and through their attorney, were compromised for an aggregate sum, which was to be applied to the judgments in proportion to their respective amounts. Ware has received more than he was entitled to receive, and there is a sum remaining in the hands of the attorney he is willing to pay to the party entitled to receive it. The prayer is for a decree declaring the complainant entitled to the money in the hands of the attorney, and for a decree against Ware, for the excess above his proportion of the aggregate amount of the compromise which he has received. A demurrer to the bill, for want of equity, waS overruled, but on a final hearing it was dismissed, on the ground that the evidence did not support its allegations.

If the equity of the bill can be maintained, it must be on the theory that there is an account to be stated and settled between the parties. It is not every matter of account of which a court of equity takes jurisdiction. There must be a fiduciary relation between tbe parties, or mutuality or complication of accounts to justify tbe intervention, or, as is said in Knotts v. Tarver, 8 Ala. 743, tbe court would be filled witb suits, wbicb could be better and more cheaply adjudicated in courts of law.. Where tbe accounts are all on one side — • where, as in tbe present case, tbe demand is purely legal, and its amount ascertainable by a simple calculation, and tbe remedy at law is adequate, tbe court will not take jurisdiction. — Kirkman v Vanleer, 7 Ala. 217; Crothers v. Lee, 29 Ala. 337; Dickinson v. Lewis, 34 Ala. 638. An examination of tbe evidence is not necessary, for if it supports tbe averments of tbe bill, it discloses a case in wbicb tbe court should not have interfered.

Tbe decree must be affirmed.