48 Ala. 287 | Ala. | 1872
-The statements in the bill clo not show that William Milner was a material defendant. No relief was prayed, and no decree rendered against him; and the proof, the written admissions of the complainant, and the statements in the answer of defendant Henry Milner, which by said admissions are made evidence, clearly show that he had no interest in the subject-matter of the suit; that he was in the possession of said lands, as the agent of said defendant Henry Milner. A person who hg.s no interest in the suit, and against whom, if brought to a hearing, no decree could be rendered, as, for example, an agent not charged with fraud, should not be made a party defendant to a bill. — Story’s Eq. Pl. § 231; Eq. Jurisp. §1499. As it was admitted that the defendant Henry Milner was a resident of the county of Wilcox, and not of the county of Marshall, the bill was improperly filed in that county; therefore, the plea of defendant Henry Milner should have been sustained, and the complainant’s bill dismissed. By section 3326 of the Revised Code, a bill must be filed in the chancery court of the district in which the defendants, or a material defendant, resides, unless all the defendants reside out of the State. — Johnson v. Shaw, 31 Ala. 592.
In the case of Lewis v. Elrod, (38 Ala. 17,) it is decided that a material defendant is one toho is really interested in the suit, and against whom a decree is sought. For these reasons, and on these authorities, the decree of the chancellor must be reversed; and this court, proceeding to render such decree as should have been rendered by the court below: It is ordered, adjudged and decreed, that the complainant’s bill of complaint be, and the same is, hereby dismissed, but without prejudice. It is further ordered, adjudged and decreed, that the" appellee pay the costs in this court and in the court below.