Compton v. Gilder, 58 So. 271

Compton v. Gilder

58 So. 271 | Ala. | 1912

ANDERSON, J.

Equity will not, as a rule, entertain a bill for an accounting, where the accounts are not mutual and are all on one side, unless there be-matters of great complication and difficulties in the way of adequate relief at law. — Hulsey v. Walker County, 147 Ala. 501, 40 South. 311; Pollak v. Claflin Co., 138 Ala. 644, 35 South. 645; Pomeroy’s Eq. vol. 4, § 1421 (3d Ed.); Crichton v. Hayles, Infra, 57 South. 696. It may be that this special tax could be recovered in a suit at law, less credits for disbursements of same by the respondent; but the bill sets up facts which would render an accounting quite complicated and difficult in a court *313of law, and almost, if not quite, impossible. It sets up a series of receipts and commingling of two separate and distinct funds, as well as tbe indiscriminate disbursement in part, as well as an appropriation or defalcation as to a part of same and seeks relief by Avay of recovery upon tAVO separate and distinct bonds. The complainant could no doubt prove the amount received by the respondent, and it would be incumbent upon him to show the credits by Avay of disbursements, yet the complainant avers that complications will arise over the nature and character of said disbursement to such an extent that it will require a court of equity to ascertain and determine the correctness of same; that while the respondent could produce teachers’ receipts, or shoAV payment covering a period of years to from 50 to 100 teachers, yet the said payments Avere made from both funds indiscriminately, and that the account, as sliOAvn by the respondent’s books, does not disclose the sums as disbursed from the tAvo funds separately, and which said fact cannot be ascertained, except by an accounting and discovery, and which is not only essential to an ascertainment of the amount due upon the special tax or fund, but which is also necessary to determine the proportionate liability under the bonds, respectively. We think the demurrer for Avant of equity was properly overruled, as the bill not only shows a complication of account, but seeks the establishment of facts by discoArery, not in the possession of the complainant, and which he cannot prove or establish Avithout a discovery.

The decree of the laAV and equity court is affirmed.

Affirmed.

Doavdell, C. J., and Simpson, Sayre, and Somerville, JJ., concur. McClellan and Mayfield, JJ., not sitting.