122 Ala. 308 | Ala. | 1898
— The bill in this case was filed in the circuit court of Jefferson county under the act of February 18th, 1895, (Acts of 1894-95, p. 881), conferring chancery jurisdiction on that court. The primary and principal relief sought by the bill, which is evident from the averments and prayer of the bill, is to have the “escrow or trust agreement” of October 22d, 1894, declared fraudulent and void, and the certificates of stock placed in the hands of Dryenforth, as trustee, delivered up by him to be cancelled, and new certificates issued; incidentally and auxiliary to this the injunctions are prayed. The bill states that the respondents, Fortimolite Metal Company, the corporation issuing the stock, Dryenforth, the trustee, who has the certificates of stock in his pos
At the time of dismissal of the bill by the court as to these parties for Avant of jurisdiction, it overruled the motion of the defendants Rucker and Sedclon to dismiss for Avant of equity. From the decree of the circuit court OAmrruling this motion to dismiss the bill for Avant of equity the appeal is taken to this court, and that decree is noAV assigned as error.
When courts of chancery must take cognizance of cases in equity against non-residents is determined by the second clause under section 669 of the Code of 1896, Avhich reads as folloAVS, viz.: “Against non-residents.— When the object of the suit concerns an estate of, lien or charge upon lands, or the disposition thereof, or any interest in, title to, or incumbrance on personal property Avithin this State, or Avhere the cause of action arose, or the act on Avhich the suit is founded, Avas to have been performed in this State.”
A court of equity, as a general rule, in its decrees, operates in personam, and must acquire jurisdiction of the person in order to compel his obedience to its mandates. This jurisdiction may be obtained by personal
No personal service had been had on the non-resident' defendants as to whom the bill was dismissed, and their action in procuring the dismissal on their motion for want of jurisdiction makes it clear that no jurisdiction can be had or expected by a voluntary appearance. Under the averments of the bill the decree dismissing the bill for want of jurisdiction as to the non-resident defendants was proper. — Iron Age Publishing Co. v. Western Union Tel. Co., 83 Ala. 498; Sayre v. Elyton Land Co., 73 Ala. 85; Galpin v. Page, 18 Wall. 350; Freeman on Judgments, (3d ed.), § § 567, 568.
The allegations and charges in the bill in connection with these non-residents who were sought to be made parties defendants, as to the contract for the issuance of the certain described shares of stock, the fraud practiced in procuring the issuance of certain certificates in the name of Miller, and the delivery of the same to Dryenforth, as trustee, constituting the very gravamen of the action, taken in connection with the prayer of the bill and the relief sought, show them to be necessary and indispensable to the suit. After the dismissal of the bill as to these defendants, and who under its averments are shown to be necessary parties, the bill then stood as to any further proceedings thereon, just as though they
The relief prayed against Rucker and Beddon is simply and wholly injunctive. The bill expressly avers that these defendants, nor either of them, have any claim to or interest in the stock in question; that neither of them had any connection with the alleged fraud practiced by Miller on the complainant, but does aver upon information and belief, that they have demanded of Dryenforth the certificates, which were placed in his hands as trustee, under the joint letter of complainant and Miller of October 22, 1894, and have threatened Dryenforth with suit. This is the ground for the injunctive relief prayed against these two defendants. The letter of contract of October 22, which appointed Dryenforth trustee, provides in terms that he can only deliver the certificates placed in his hands upon the joint written request of complainant and Miller. The only reasonable inference to be drawn from the allegations- of the bill as to the demand made on the trustee, Dryenforth, for the certificates of stock in his hands, by these two defendants, and their threatened suit, is that Dryenforth refused their demand, and hence the threat of suit. By the averments of the bill the defense at law to any suit brought by these defendants against Dryenforth for the recovery of the certificates, is perfect and complete, and it is too well settled to call for a citation of authorities, that under such circumstances a court of equity will not lend its aid by injunction.
The only remaining question is whether the motion to dismiss the bill is the proper practice, or should the objection be reached by demurrer. It was said by this court in the case of Iron Age Pub. Co. v. West. Un. Tel. Co., 83 Ala. 506, a case very similar to the case at bar: “But in this case, where the granting and perpetuation of the injunction prayed for is the whole case made by the bill, we think it eminently proper that the question should be raised by demurrer, or motion to dismiss, when the defect of jurisdiction appears on the face of the bill, and is raised by a co-defendant.” Again, it has been decided, that “when admitting the facts apparent on the
Under these authorities, we think there can be no doubt that in this case, a motion to dismiss the bill for want of equity by the defendants Rucker and Seddon was proper and should have been granted.
The decree of the circuit court is reversed, and a decree will be here rendered dismissing complainants’ bill for want of equity.
Reversed and rendered.