71 Ala. 227 | Ala. | 1881
It is our judgment that the demurrer to the bill in this case was properly sustained. It was fatally deficient in equity in several particulars.
The complainants had a plain and adequate remedy at law, so far as concerns the items of $100, and $500, alleged to have been paid on the judgments rendered against Buchanan.
If these payments were made after the revival of the judgments in the Probate Court on the sci. fa. proceedings; or even if they were made before such revivor, and the proposition can be maintained that the neglect of Buchanan to set up the defense of payment does not conclude his sureties, the latter would be entitled to a supersedeas, arresting the issue of any execution against them on the judgment or judgments so satisfied, save only for the balance remaining due and unpaid. All courts possess this inherent and necessary power to prevent the abuse of their own process, by quashing executions thus wrongfully and improvidently issued, or by superseding them pro tanto so far as paid or satisfied.-Lockhart v. McElroy, 4 Ala. 572; Rutland v. Pippin, 7 Ala. 469; Dunlap v. Clements, 18 Ala. 778. The power of the Probate Court was clearly adequate to allow these credits in favor of Buchanan, had they been legal and proper, and been presented in proper time. Mason v. Buchanan, 62 Ala. 110.
The bill is further defective in failing to make the administrator of the estate of Mrs. Frances S. Mason a party defendant to the suit. She was a necessary party, in whose absence no decree can be justly rendered. The purpose of the suit is, in part, to set up against the judgments sought to be enjoined,, an equitable setoff, amounting to about one thousand dollars, which James E. Mason, the beneficial owner of these judgments, received from the estate of said Mrs. Mason, who was a co-principal with Buchanan on his first administration bond. In
Ve can not see, furthermore, that the two Larkins and Compton were proper parties plain tiff in the suit. They were sureties on the second bond given by Buchanan, and this bond was executed after the death of Mrs. Mason. There was no privity therefore between these complainants and Mrs. Mason. Their principal was Buchanan, and none other. Conceding that the other complainants were entitled to recover, in the absence of any proposed amendment to correct this misjoinder, no relief could be granted them in this cause, and the bill was properly dismissed. The general rule in courts of equity is, that all of the parties complainant must be entitled to relief, or the suit must fail.-James v. James, 55 Ala. 525; Vaughn v. Lovejoy, 34 Ala. 437; Wilkins v. Judge, 14 Ala. 135.
The decree of the chancellor will, however, be modified by dismissing the bill without prejudice, and, as thus amended, the decree will be affirmed.
