138 Ala. 644 | Ala. | 1903
The bill is filed to settle accounts between complainant aixd defeixdant, which are alleged to be so complicated aixcl intricate as to require- the court of equity to adjust and settle them — a court of law, as alleged, being incompetent to furnish a co-mixlet-e and adequate remedy therefor.
The respondent’s counsel make a statement of the averments of the bill which, so far as we can discover is fair, and therefore for convenience we adopt it. He says, when stripped of its multifarious allegations, the bill “avers that Poliak & Co. was at one time indebted to the appellee in' the sum of about $35,000, that this amount was subsequently reduced to $14,000 ; that the Poliak Co. failed iix business and after said failure appellant executed his individual notes to appellee for about $15,000; that appellant has paid about $1,000 on these notes, and appellees have also received from the estate of the Poliak Co. about $2,200 which should be allowed as a credit on said note and that there is still in the hands of the trustee of the Poliak Co. an undivided dividend which appellee ought to collect and apply on appellant’s xxotes; that the Poliak Co. was succeeded by a new corporation known as The Fair, of which appellant became a stockholder; that a few days before The Fair was put into involuntary bankruptcy, appellant severed his connection with the said The
The prayer of the bill, so far as pertained to the necessities of the case, was: “That respondent he required to make full and true discovery and disclosure of and
1. The law in cases of this character is well settled. In Avery v. Ware, 58 Ala. 475, the court said: “If the equity of the bill can be maintained, it must be on the theory that there is an account to be stated and settled between the parties. It is not every matter of account of which a court of equity takes judisdiction. There must be 'a fiduciary relation between the parties, or mutuality or complication of accounts -to justify the intervention, or, as is said in Knotts v. Tarver, 8 Ala. 743, the court would be filled with suits, which could be better and more cheaply adjudicated in courts of law. When the accounts are all on one side, where the demand is purely legal, and its amounts ascertainable by a simple calculation, and the remedy at law is adequate, rhe court will not take jurisdiction.”
In Beggs v. Edison E. Ill. Co., 96 Ala. 298, the court said: “It is now the settled doctrine of equity jurisprudence, that when the accounts to be examined, are on one side only, great complication ought to exist in the accounting or a discovery should be required, in order to induce a court of chancery to exercise jurisdiction. * * And in transactions not of this particular character, great complication ought to exist in the ac
An examination of the bill discloses that it is not one for the settlement of mutual accounts between the parties. in substance it states, that respondent, who was engaged in the wholesale mercantile business in New York, became a creditor in the sum of $35,000 of The .Pollalc Co., of which complainant was a member, engaged iivtlie retail mercantile business, in Montgomery, Ala., and that on account of certain independent transactions, not connected with the conduct of said business, respondent owed complainant certain large sums which were properly creditable to him on his indebtedness to respondent, and these credits to which complainant avers he is entitled, were, in each instance, particularly specified. It amounts to no more than a claim of credits for payments on promissory notes given by complainant to respondent, which, if allowed, would pay the notes, leaving a balance by way of set-off due the complainant. There were no mutual mercantile accounts between the parties, and by the averments of the bill, there were no accounts of any character to be settled which were of any complication or difficulty. If respondent were to sue complainant at law on his notes, complainant might easily state an account of the sums he claims should be allowed him as credits thereon and plead them as such to the action — as payments and by way of set-off. Or, as it appears, if complainant were to sue respondent at law on the amount he claims respondent owes him, and made the proof necessary to establish his demand, he would be entitled to recover for the excess of his -demand over that of respondent; and, -in either case, we are unable to discover such confusion, compli
2. The rule as to a hill of discovery is, that in order to sustain jurisdiction for relief sought, consequent on a' discovery, it is necessary to allege that the facts sought to he discovered are material, that the ascertainment of them by tlie complainant is indispensable as proof and that he is unable to establish them by other proof. Such allegations, nor anything like them, are made in the bill, and it was subject to the demurrer.- — Guice v. Parker, 46 Ala. 616; Dickinson v. Lewis, 34 Ala. 638, 645; Continental L. Ins. Co. v. Webb, 54 Ala. 688; Shackelford v. Bankhead, 72 Ala. 477; V. A. M. & M. Co. v. Hale, 93 Ala. 542.
Affirmed.