86 So. 2d 275 | Ala. | 1956
The bill is as follows:
"D.C. Beckham, } Complainant } J. G. Simpson, } In the Circuit Court of Co-Complainant } Montgomery County, Alabama No. 27392 } vs. } In Equity John R. Rose, } Respondent }
"To The Honorable Judges Of Said County In Equity Sitting:
"Comes, the complainant, D.C. Beckham, and alleges unto the Court as follows:
"1. Complainant is a resident citizen of Bullock County, Alabama. The residence of co-complainant is unknown to complainant. Respondent is a resident citizen of Montgomery County, Alabama. All are over the age of twenty-one years.
"2. During the year 1949 and for sometime theretofore co-complainant and respondent were engaged in a partnership *211 known as Rose and Simpson in the business of buying and selling livestock, which firm was in early 1949 insolvent. Around April of 1949 complainant was induced by respondent and co-complainant to enter into a partnership with co-complainant for the carrying on of a similar business under the name of Beckham and Simpson, part of the inducement being that the firm of Rose and Simpson was being dissolved. The Beckham and Simpson partnership agreed to take over certain of the assets and liabilities of Rose and Simpson.
"3. The partnership of Beckham and Simpson commenced operations in April 1949 and continued to operate for about three months until late July of 1949, at which time it was ordered closed out by the Packers and Stockyards Division, Livestock Branch, United States Department of Agriculture, said partnership being then hopelessly insolvent, having an operating loss of around $58,000.00, the greater part of which complainant has had to make good.
"4. In spite of the representations that Rose and Simpson would be closed out said partnership was secretly and circumspectly and in fraud of complainant continued in operation by respondent and co-complainant, which was unknown to complainant, and from time to time and without the knowledge or consent of complainant certain of the funds of Beckham and Simpson were used to pay obligations of Rose and Simpson.
"5. At the time Beckham and Simpson was closed out by the Department of Agriculture, Rose and Simpson was indebted to Beckham and Simpson in the amount of $10,010.47, which amount is reflected in the books of Beckham and Simpson as funds receivable and in the books of Rose and Simpson as funds due to Beckham and Simpson. Said amount due to Beckham and Simpson has been ascertained by official audit of the aforesaid Packers and Stockyards Division, Livestock Branch, United States Department of Agriculture, pursuant to a winding up of the affairs of Beckham and Simpson and Rose and Simpson. Said amount has been acknowledged by J. G. Simpson and by respondent as being true, correct and due to the firm of Beckham and Simpson.
"6. Complainant has no adequate remedy at law, since partnerships with a common partner are involved.
"7. Complainant joins as co-complainant the sole other partner in Beckham and Simpson, J. G. Simpson, whose whereabouts and residence he does not know, and he offers to file with the Court such bond or other security as may be required by the Court to indemnify the said J. G. Simpson against any costs incurred in this cause.
"The Premises Considered, complainant prays that the Court will take jurisdiction of this cause and will cause its Writ of Subpoena to be issued to John W. Rose, respondent, directing him to plead, answer or demur within the time allowed by law, and will set this cause for hearing and upon the hearing thereof will order and decree that respondent pay unto him the sum of $10,010.47, with interest, and for such other, further and different relief as he may be entitled to in the premises.
"John C. Godbold --------------------------- Attorney for D.C. Beckham, Complainant."
This is an appeal from a decree of the circuit court of Montgomery County, in equity, overruling the demurrer interposed by appellant to the bill, which the reporter will set out in the report of the case.
The bill presents an unusual situation and the research which the writer has made has pointed up the wisdom of our rule to the effect that on an appeal from a decree overruling a demurrer to a bill in equity we treat only the grounds of demurrer which are adequately argued in brief, and we wish to make it clear that in this opinion we have considered only the grounds of demurrer discussed in appellant's brief and the argument made in support of those grounds.
The general rule is that all partners must join as parties plaintiff in an action to enforce a claim in favor of a partnership and cannot sue in their partnership name. Moore
McGee v. Burns Company,
It has been held that where one partner will not join in a suit to recover partnership obligations that the other partner or partners may name him as co-plaintiff by indemnifying him against costs. Harris v. Swanson Bro.,
In the bill presently before us, it is apparent that Beckham has proceeded on the theory that he cannot sue in the partnership name nor can he sue alone, so he has joined as co-complainant his partner, Simpson, whose address he does not know, and he has offered to indemnify Simpson against any costs he may incur in the cause. Although there is no averment that Simpson has refused to join with Beckham in the prosecution of the suit, we think the fact that Simpson's "whereabouts and residence" is unknown to Beckham makes the holding in Harris v. Swanson Bro., supra, applicable here.
While the prayer of the bill is subject to the construction that Beckham prays *213 for recovery for himself alone, we are of the opinion that when the prayer is considered in connection with the caption and the stating part of the bill, it is manifest that any decree which might be rendered against the respondent would have to be in favor of the partnership of Beckham and Simpson. We hold, therefore, that there is no merit in those grounds of the demurrer which take the point that this is an effort on the part of an individual partner to recover in his own name for an obligation due the partnership.
The argument made in brief of appellant in support of the insistence that the trial court erred in overruling grounds of demurrer which took the point that the equity court was without jurisdiction because the averments of the bill show an adequate remedy at law is in material respects as follows:
"The only relief sought by the bill was the recovery of a money judgment. * * * The only allegation by which equity jurisdiction is sought to be established is the allegation of Paragraph Six 'Complainant has no adequate remedy at law, since partnerships with a common partner are involved.'
"Whatever may be the law in other jurisdictions, this court in Alexander Brothers v. Jones,
90 Ala. 474 [7 So. 903], established that although at common law, one partnership could not maintain an action against another when the two had a common partner, under the statutory provisions making partnership debts joint and several [§ 141, Title 7, Code 1940] the creditor partnership could maintain an action at law against a member of the debtor partnership individually. The complainant, therefore, had an adequate remedy at law and the court below erred in overruling the demurrer raising this ground."
As counsel for appellant states, we did hold in Alexander v. Jones,
However, the opinion in Alexander v. Jones, supra, recognizes the fact that equity originally had jurisdiction of such controversies. And the authorities agree that equity may take cognizance of these cases in a suit between the parties. Haven v. Wakefield,
"Another illustration of the beneficial result of equity jurisdiction in cases of partnership may be found in the not uncommon case of two firms dealing with each other where some or all of the partners of one firm are partners with other persons in the other firm. Upon the technical principles of the common law in such cases no suit can be maintained at law in regard to any transactions or debts between the two firms; for in such suit all the partners must join and be joined and no person can maintain a suit against himself or against himself and others. The objection is at law a complete bar to the action. * * * "
In § 923 the author further states:
"But there is no difficulty in proceeding in Courts of Equity to a final adjustment of all the concerns of both firms in regard to each other; for in equity it is sufficient that all parties in interest are before the court as plaintiffs or as defendants, and they need not, as at law, in such a case be on the opposite sides of the record. * * * "
So while § 141, Title 7, supra, may have afforded the necessary relief in *214
a court of law, yet it is not the exclusive mode of relief, but is concurrent and cumulative with that of equity. Waldron, Isley Co. v. Simmons,
We hold, therefore, that the trial court did not err in overruling the grounds of demurrer taking the point that the complaint shows an adequate remedy at law.
The remaining insistence of appellant is that the trial court erred in overruling the grounds of demurrer taking the point that "the claim is barred by laches."
The rule of our decisions in respect to laches is stated in the case of Mullen v. First Nat. Bank,
"In cases where the charge of laches is predicated upon delay only, and that delay appears on the face of the bill to have been short of the period of limitation, the reason of the rule of analogy obviously requires that special circumstances operating to destroy the right asserted should be brought forward by way of defense. In cases, however, where the bill shows a lapse in excess of the period of limitation, it would seem that special matters obviating the rule of analogy should be brought forward in the bill."
It is not argued in brief of appellant that the instant bill was not filed within the limits allowed by law; that is, it is not claimed that the statute of limitations, by analogy, has any application to the matter of instant concern.
Appellant's real contention is that the bill was not filed until approximately five years after the time which he construes the bill to show that the indebtedness was incurred and until after the disappearance of Simpson, who had knowledge of the affairs of both partnerships. While the bill does show that Beckham did not know the "whereabouts and residence" of Simpson at the time the bill was filed, we do not think such an averment can be said to show that Simpson's "whereabouts" is not known to the respondent or that Simpson will not be available to give testimony on the trial of the cause. We hold, therefore, that the bill does not show laches on its face and that the grounds of demurrer raising that point were overruled without error.
The decree of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and MERRILL, JJ., concur.