Bowie v. Minter, 2 Ala. 406

Bowie v. Minter

2 Ala. 406 | Ala. | 1841

COLLIER, C. J.

— It is objected by the plaintiff in error, that, without reference to the substantial merits of the controversy, the Chancellor should have dismissed all the bills which were submitted to him at the hearing. 1. Because Wm. T. Minter was the sole complainant in the original, and first supplemental bill, while the case stated, shows that his wards should have been the actors in the cause, by him. 2. Because the last suppemental bill was not good as an original, so as to sustain the decree, or if good as an original, it was demurable; because Wm. T. Minter, who does not appear to have been a proper party, was made a complainant — and because the same was filed without leave of the Court.

It is clear, that the original, and first supplemental bill are exhibited at the instance of Minter himself. True he describes himself as the guardian of certain persons, whose names he mentions, and the cause of complaint, is one in which his wards are alone interested; yet, as the plaintiff in error, is called on to answer to him individually, he must be regarded as the real party complainant. No decree, on the hearing of these bills, could be rendered, either for or against the wards ; they are not described as parties, nor is any piuyer made for relief in their behalf.

In McLeod v. Mason, 5 Porter’s Rep. 223, there was a settlement in the Orphans’Court of Madison, of the accounts of the plaintiff, the former guardian of A. T. Heath, with.the defendant, the guardian at that time. After ascertaining the sum due by the'plaintiff, as guardian, the decree proceeded as follows : “ on motion of Samuel Peete, attorney for George Ma*410son-, guardian of Adaline T. Heath, infant child, &c, it is considered by the Court, that said guardian recover of and have exe cution against George McLeod, late guardian of said Adaline T. Heath, for the sum', &c. This order was made subsequent to the rendition of the decree, ascertaining the amount in the hands of the former guardian, and the Court say, “ we look upon this order for an execution, as wholly unnecessary; yet, we are not permitted to disregard it, for it was made at the same time, and by the' same authority, that the decree was, and controls it, by confining the right to sue out execution in his own, name to the guardian.” And further, “ in prosecuting a suit for the benefit of a ward, the guardian should describe the ward upon the record, as suing by him, as thus : A. B. an infant, &c., by C. D., his guardian; and the judgment should pursue the process and declaration.”

In Sutherland v Goff, 5 Porter’s Rep. 508, the declaration commenced thus : “ Martha T. Goff, guardian of Eliza A. Goff, complains of John Sutherland in custody, &c.” The subject of the controversy was one which concerned the interest of the ward, as was shown by the pleadings; yet, the Court held, that the action was not well brought. And in Gregg, et al. v. Bethea, 6 Porter 9, it appears that the guardian of an infant moved the Orphans’ Court, for an order upon the executor of the ancestor of the infant, to pay over a sum of money to the guardian, to defraj'- the charges of maintenance. It was held, that the application to the Orphans’ Court, should have been made in the name, of the ward, and judgment rendered in his favor; and that consequently, the proceeding by thegnardian in his own name was irregular.

In the case before us, it is not pretended that Minter had been in the possession of any of the negroes, which he sought to recover; or that there had been any contract, between the plaintiff in error and himself, in regard to the estate of his wards; but the avowed object of his bill, is the recovery of money and property, which it is alledged, the former guardian holds in trust for the wards. So, that, if a previous possession by the complainant, or a contract with him, would allow a remedy in his own name,-nothing of the kind is shown ; and the cases cited, must apply with all force, unless a rule obtain in *411equity, different from that which has been recognized at law. We think that the law, in regard to the right of the guardian to sue, must be the same in both Courts. In the case stated, in the original and first supplemental bill, it is clear, that the legal right is in the wards; and as they are entitled to whatever may be recovered, it requires no argument to prove that they have the beneficial interest also. And, as a Court of equity looks rather to the right of use and enjoyment, than the mere naked right of possession, it would seem the more imperious- • ly to require, that the wards, instead of their guardian, should be the actors in the cause. It follows therefore, that, as these bills were filed by Minter, instead of the wards, in whom the legal, as well as equitable interest in the matters to be litigated, was vested, they should have been dismissed by the Chancellor.

2. The last bill filed in the cause eannot aid, or be aided by •those previously filed. True, it professes to be a supplemental bill, yet,it cannot be regarded as such; for a bill of that description is filed, for the purpose of supplying a defect, which has •arisen in the progress of the suit, by the happening of some event subsequent to the filing of the original bill. And the object of it, is to bring before the Court, matters which have occurred since the original bill was filed; hence it has been held, that whenever a defect can be remedied by amendment, a supplemental bill will not be allowed. Where a complainant discovers any original deficiency in his bill, he is at liberty, up to the time of joining issue, to cure the omission by amendment ; and that, for the purpose of merely adding formal parties, the amendment may be made at any period of the-suit. If, however, such parties are rendered necessary, by any circumstance, having occurred after the bill was filed, there must be a supplemental bill.

A supplemental bill is merely in ■continuation of the original suit, and filed for the purpose of filling up such a deficiency, as does not cause a material alteration in the matter in litigation, or a change of the principal parties; and when, therefore, it is only requisite to add something to the former proceedings in order to attain complete justice. But an original bill, in the nature of a supplemental bill, is properly applicable, *412when new parties, with new interests, arising from events since the institution of the suit, are to be brought before the Court. The latter being to all intents and purpose, the commencement of a new suit, which, nevertheless may, in its consequences, draw to itself the advantage of the proceedings on the former bill. Story’s Eq. Pl. 268 to 281; Lube’s Eq. Pl. 136 and 7; Stafford v. Howlett, 1 Paige’s Rep. 291; Eager v. Price, 2 Paige’s Rep. 333 ; Mitford’s Pl. 49, 78 ; 3 Atkins’ Rep. 217

If, in the progress of a suit, a feme plaintiff marry, or any other event should occur, by means of which the original suit falls to the ground, in consequence of there being no longer before the Court, any person by, or against whom the suit can be continued; the Court will, in such case, permit a bill to be filed by or against the person, who comes in, in the same right as the original parly, and lohose title cannot he controverted, praying that the suit and proceedings upon it, may be restored to the same plight and condition, as for or against the new party, in which it stood with respect to the original party, through whom the abatement was caused. Such bill, is termed a bill of revivor, and can only be had by or against the heir, executor, or administrator of a deceased party, or the husband of a feme plaintiff; for they alone come in by a title that cannot he litigated. [Lube’s Eq. Pl. 140.]

- A bill of revivor and supplement, is said to be a compound of a supplemental bill and bill of revivor; and it not only continues the suit which has abated, but supplies any defects in the original bill, arising from subsequent events; and where a complainant has a right to revive a suit, he may add to the bill of revivor such supplemental matter,as is proper to be added. But the supplemental matter must have been newly discovered, and verified by affidavit; and may be demurred to, by the defendant. [Westcott v. Cady, 5 Johns. Ch. Rep. 242 ; Douglass v. Sherman, 2 Paige’s Rep. 360; Pendleton v. Fay, 3 Paige 204 ; Randolph v. Dickinson, 5 Paige’s Rep. 517.]

If the original suit had been brought in the name of Sarah R. Bowie, upon her marriage, it might have been revived in the name of herself and husband; and the ante-nuptial contract in regard to her estate, stated by way ofisüpplement to the bill of *413revivor. But such was not the condition of the cause; the suit was brought and continued up to the filing of the last bill, in the name of Minter; and did not abate, so far as the record informs us.

We have seen that the bill under consideration, cannot be regarded as a supplemental bill, or as an original bill, in nature of a supplemental bill; because the interest of George J. and Sarah R. Bowie existed previous to the commencement of the suit. And in respect to the interests which have since vested in Lard W. H. Walker, that cannot be brought to the view of the Court by a bill of revivor and supplement, because his wife was not previousyl a party to the cause.

The original bill was so defective, as we have seen, that no decree could have been rendered upon it in favor of the complainant ; and as the interests of his wards were then existing? it could not be aided by a disclosure of their interest, through the medium of a supplemental bill.

And even, if we could regard the bill, we are examing as an original, the defendants in error, would not be entitled to a decree under it for the slaves, and their hire which was the object of the suit. This bill does not recite the substance of those filed by Minter, or any other facts from which the Court of Chancery could ascertain the matters in controversy. It merely states the proceedings had on those bills — recites the ante-nuptial agreement — prays that the suit by Minter, may stand revived in the name of himself and the other complainants; and in addition to the prayers of those bills — prays that the trust of the ante-nuptial agreement may be established; and that such further relief as may be proper, be granted, &e. The original and supplemental bill of Minter being out of the way, there would remain before the Court no bill, which would au-thorise a decree ^gainst the plaintiff, for the settlement of the accounts of his guardianship.

Again: If the bill was good as an original, would it not be defective on general demurrer, for having made Minter a complainant, not as the guardian of George J. Bowie, but in his own right? As George J. Bowie complains for himself, we infer that he had attained his majority before the bill was filed; and Sarah R. having married, her husband became her *414guardian by operation of law. Upon this supposition, what interest remained in Minter, that made it necessary, or even proper, that he should be made a party? It was not at all essential to the ante-nuptial agreement, that he should have joined in it, as the guardian of Mrs Walker. He could not have aifected her interest by any stipulation of his; and it would have been quite as binding upon the creditors and purchasers of her husband, without, as with his approbation. But we decline deciding, [as it is unnecessary,] whether Minter was an improper party, so as to have required a dismissal of the bill for a misjoinder of complainants. [Moore et al. v. Armstrong et al., 9 Por. Rep. 697.]

It has been often holden, and such may be considered the established practice, that a supplemental bill cannot be filed without leave of the Court. [Eager v. Price; 2 Paige’s Rep. 333; Story’s Eq. Pl. 270; Walker et al. v. Hallett; 1 Ala. Rep. N. S. 379.]

But whether the objection, that it was filed without a previous order for that purpose be available on demurrer, or whether the subsequent assent of the Court, will not cure the irregularity, are questions which we -deem it unnecessary to decide; as the proceedings in the case at bar, are so radically defective that they cannot be thus perfected. •

Without examining the interesting questions discussed at the bar, we are of opinion, for the reasons already stated, that the Chancellor should have repudiated the cause. His decree is therefore, reversed; and the several bills filed by Minter, as well as that filed by the defendants in error, dismissed without prejudice; and that the defendant, Wm. T. Minter, pay the costs of the original and supplemental bills filed by him; and that all the defendants pay the costs of the last bill filed as a bill of revivor and supplemental bill.