46 Ala. 619 | Ala. | 1871
This is a bill in equity to enforce the vendor’s lien for the purchase-money for a tract of land. It was filed in the first instance by Nevin Melnnish and Duncan H. Melnnish as complainants, against the appellants, Taunton & Brooks, as defendants. The original bill required the answer of the defendants without oath. The defendants did not answer, but demurred for a misjoinder of complainants. The demurrer was sustained, and the bill was amended by striking out the name of Nevin Melnnish and accommodating the phraseology of the allegations to a sole complainant, said Duncan H. Mein
The original aud amended bill form but one pleading and but one suit. After the amendment is allowed, they stand and are to be treated as a whole, particularly when their statements are the same as to the material allegations in the cause.— Winter v. Quarles, adm’r, 43 Ala. 692 ; Story Eq. Pl. § 885 ; 1 Dan’l Ch. Pr. 455, Perkins Ed. A cross-bill may be made in an answer to an original or amended bill. — Rev. Code, § 3367, 3368, 3369. And an answer so made must be governed by the rules which govern a cross-bill. It must be served on the complainant and answered by him or taken, upon failure of answer, as confessed. And, if answered, the answer has the same force as an answer to a cross-bill. If the answer denies the allegations of the cross-bill, the denials must be overturned by proof as in an original suit. The cross-bill is to be treated as an auxiliary suit depending upon the original suit. — 3 Dan. Ch. Pr. 1742, Perk. Ed.; Story Eq. P. § 399 ; Nelson & Hatch v. Dunn et al., 15 Ala. 501, 513. A bill of this kind is usually brought to obtain a necessary discovery of facts in aid of the defense to the original bill, or to obtain full relief to all parties, touching the matters of the original bill and to afford the chancellor opportunity to decree in favor
Let the judgment of the court below be affirmed, and the appellants will pay the costs of this appeal in this court and in the court below.