Cleveland v. Insurance Co. of North America

44 So. 37 | Ala. | 1907

ANDERSON, J.

Tbe jurisdiction of the court of equity, will be exercised “in suits by a single” party against a number of persons to restrain tbe prosecution of simultaneous actions at law brought gainst him by each defendant, and to procure a decision of the whole in one proceeding, where all of the actions depend upon the same lam and facts.” — 1 Pomeroy, § 274. All the suits set up in the bill in the case at bar are by different parties against this complainant, but each seeks to recover of and fix its liability under the same policy of instifance. A judgment, if in favor of the complainant, in no ofie of them would operate as a bar to the other suits, notwithstanding the law and facts would be the same in each of them. There being a community of interest in the subject-matter, and the sole question in each case being the complainant’s liability vel non and the fixation of the amount in case of liability, there can be but one tine assessment of the actual amount of the loss, and yet each jury might put it at a different sum. — Morgan v. Morgan, 3 Stew. (Ala.) 383, 21 Am. Dec. 638; Tisdale v. Insurance Co., 36 South. 568, 84 Miss. 709; Hightower v. M. & K. R. R. (Miss.) 36 South. 82; Virginia Chemical Co. v. Ins. Co., 113 Fed. 1, 51 C. C. A. 21. The case of Turner v. Mobile, 135 Ala. 73, 33 South. 132, is not in conflict with what we here hold. There the suits did not involve the same subject-matter, as each suit was for a separate and distinct parcel of land, and there Avas no community of interest or title in all parties to any parcel of the land involved in any one suit. Here the sole question involved in each siut is the liability of the complainant- to Cleveland under a certain policy of insurance.

The judge of the city court properly overruled the motion to dismiss the bill for Avant of equity, as well as the demurrers to the amended bill. The appeal not being from a final decree, and the action of the judge in sustaining exceptions to the ansAver not being Avithin the class provided for by section 427 of the Code of 1896, we cannot reA'iew the action of the court below in this respect, upon this appeal. — Hood v. Southern Ry., 133 Ala. 374, 31 South. 937; Richardson v. First National Bank, 119 Ala. 287, 24 South. 54.

The decree of the city court is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.