85 Ala. 313 | Ala. | 1887
Appellant takes the appeal from a decree of the chancellor sustaining a demurrer to the bill, which is brought on behalf of Sumter county against the tax-collector and the treasurer, and the sureties on their several official bonds. It alleges that the defendant Brunson was elected tax-collector in 1880, re-elected in 1884, and after each election, before entering on the duties of his office, executed bond as required by law; and that D. W. Mitchell was elected treasurer of the county in 1884, and gave bond for the discharge of the duties of his office. It further alleges that the collector has been in defaidt, during both his terms of office, and that each of the officers is in default several thousand dollars, the aggregate sum exceeding $ 12,000; but, on account of the manner in which they have dealt with and managed the county taxes, it is impracticable to ascertain the amount with which each should be charged. The leading purposes of the bill are, to compel the collector to settle his accounts, and the collector and treasurer to take proceedings to settle their accounts between themselves — in the nature of interpleader — so that the court may determine and adjudicate the sum for which each is liable.
The bill properly concedes, that the treasurer being the law-appointed and exclusive custodian of the money of the county, a suit at law or in equity can not be commenced by the county, and a money judgment or decree recovered against him and his sureties, until the expiration of his term of office, by limitation, removal, resignation, or death. While,
Courts of equity possess what is called auxiliary jurisdiction, which is exercised, not to grant relief, but to aid in the prosecution and maintenance of legal rights in actions at law, pending or to be brought — suits for discovery proper, or for the perpetuation of testimony. Complainant, however, does not invoke the exercise of this jurisdiction. In suits of these classes, when the discovery is obtained, or the testimony procured, the function of the court ceases, and no decree is made. The discovery or testimony is merely preserved, and may or may not be used in the action at law. The court does not, and can not, find and establish the facts discovered or proved, so as to make them conclusive on the parties. In the present case, the complainant prays for relief, and that a decree be made fixing and establishing the amount with which the treasurer should be charged, so as to make it conclusive proof thereof in a subsequent suit on his official bond, if such suit should become necessary. This, the court is without power or jurisdiction to do. Besides, the bill is not framed as one for discovery, in its technical and proper acceptation. It does not make a case of equitable cognizance against the treasurer and his sureties.
The statutory declaration is, the powers and jurisdiction of courts of chancery extend “to all civil causes, in which a plain and adequate remedy is not provided in the other judicial tribunalswhich is regarded as an affirmation of the pre-existing rule, that courts of equity will not take jurisdiction when the rights of- the parties litigant are wholly
Appellant does not controvert, that an independent equity is essential, but insists, that the case made by the bill involves a subject-matter within the jurisdiction of a court of equity. The contention is founded on the proposition, that the collector 'and treasurer are trustees of the same fund, and agents of a common principal, who have neglected their official duties, and mismanaged the business of their respective offices; payments having been' made by taking due-bills, or in other irregular ways, or by remittance in gross,
It is contended that, though the bill may not make a case cognizable in equity against the collector and treasurer singly, the suit is maintainable against them and their respective sureties jointly, on account of the danger that complainant will not be able to recover all to which the county is entitled from both, or either, if driven to separate actions at law, where the matter would be submitted to different juries, on probably different evidence; such danger arising from their conflicting claims as to certain payments aiid credits, and the complication of accounts as between themselves, which warrants equitable interposition to compel them to litigate with each other, and to settle the portion of the aggregate defalcation for which each is responsible. Neither the inability to make proof, nor its uncertainty, affects the adequacy of the legal remedy; and it may be remarked, that the entanglement of accounts-which authorizes the interference of equity, is a complication between the complainant and the defendant, and not between co-defendants, against whom distinct claims are prosecuted, though both may be agents of the principal. Independent of this consideration, the bill does not make a case of complicated accounts. The evidence is readily attainable to show the amount with which each officer should be charged, and the
It is further insisted, that though the bill does not contain the essential elements of a bill of interpleader proper, it should be maintained on analogous principles, as in the nature of a bill of interpleader; and the doctrine is invoked, that old equitable remedies will be modified, or new ones invented, if necessary, to meet the emergencies of the case. Though the remedial powers of equity are so broad and flexible as that it is difficult to limit the remedies which it can grant, they are not so flexible and expansive as to extend, by the modification or invention of mere remedies, the jurisdiction of chancery to cases of which it did not previously have original and independent jurisdiction. The remedies may be broad and flexible, but the jurisdiction is defined and limited by settled rules.
Affirmed.