210 F. 200 | 5th Cir. | 1913
The decrees appealed from in this case are amended so as to read “without prejudice,” and as amended affirmed, with costs.
On Application for Rehearing.
The judge below gave no written reasons for his decree dismissing the bills in this case; but we gathered from the arguments at the bar that counsel understood that the reasons were want of equity, multifariousness, misjoinder of parties, and want of necessary parties, as well as conflict between the original complainants and the intervener-complainant.
A general allegation that there were others interested during all this time is more a conclusion of law than an allegation of fact on which the court could act, as the bill does not show that there were actual creditors or stockholders interested in the United Wireless Telegraph Company at the time of the doing of the acts complained of who were unaware of what Wilson and his associates were doing, and whose rights were adversely and injuriously affected by those acts/
The original bill of Hill and others seeks to declare a constructive or resulting trust in favor of the United Wireless Telegraph Company
The complainant-intervener, trustee of Wilson, proceeds under the entirely different theory that the conveyances of the property to the defendants in the case were made in Wilson’s interest, bought with Wilson’s money, and thereafter the different conveyances alleged in the intervening bill were made to hinder, delay, and defraud Wilson’s creditors, and the bill seeks to impound the property on that ground.
The two bills cannot stand together, and it would appear that neither can be sustained separately as a part of a joint suit.
Taking this view of the case, we concluded, as we think properly, that the decree appealed from should be amended so as to read “without prejudice,” and as amended affirmed, thus leaving the appellants to proceed by new and original bills, if' by counsel so advised.
The petition for rehearing is denied.