Maryland Casualty Co. v. Holmes

FOSTER, Justice. The original bill seeks relief on behalf of minor -wards in two alternative aspects. In the second paragraph, one aspect is alleged to result from the fact that the guardian deposited in a bank the money which was lost by the failure of the bank, and that, under the agreement the deposit was made subject to the joint control of the guardian and the surety on his bond. This is upon the principle of our case of Bates v. Jones, 224 Ala. 82, 139 So. 242. In the third paragraph, the other aspect is alleged to exist because the money was not deposited as such in bank,'but was made a time deposit, and therefore a loan, and was made without security, as required by section 8149, Code. Lee v. Lee, 67 Ala. 406; Barnes v. Clark, 227 Ala. 651, 151 So. 586, 90 A. L. R. 637. The question here does not arise on the sufficiency of the bill in either aspect; but upon the cross-bill. The answer and cross-bill of the surety on the guardian’s bond admit the allegations of the second paragraph, except as to the amount; and admit the allegations of the third paragraph, except also as to the amount, but deny that the loan was without security. It then sets up the liability of the four cross-respondents,not theretofore parties to the cause, upon their written agreement set out in the opinion of Justice Bouldin, not mentioned in the original bill. It prayed that an account be stated allowing the guardian certain credits, and, if anything be found due, cross-complainant offers to pay the same, and prays that the court decree in "its favor against said cross-respondents on their guaranty for the amount so found due and paid by cross-complainant, and that it be subrogated to the rights of the guardian against said cross-respondents. We think the cross-bill is subject to demurrer on a principle well settled in Alabama, and existing under our present statutes (if not oh other grounds not now considered). “A cross-bill is, in its nature and purposes, defensive to the original bill. If its object and effect be not to defeat a recovery by complainant, in whole or in part, or to modify the relief the complainant obtains, then it is not defensive in its purpose, and is not germane to the bill.” Tutwiler v. Dunlap, 71 Ala. 126; Behan v. Friedman, 216 Ala. 478, 113 So. 538; Denicke v. Davitt, 223 Ala. 69, 134 So. 794; Whitfield v. Riddle, 78 Ala. 99; Davis v. Cook, 65 Ala. 617; Nelson v. Dunn, 15 Ala. 501. A cross-bill may be not simply defensive, but may set up additional facts relating to the subject-matter of the original bill, not alleged in it, and pray for affirmative relief. It is then not simply defensive. Wilkinson v. Roper, 74 Ala. 140; Bell v. McLaughlin, 183 Ala. 548, 62 So. 798, and cases cited. Denicke v. Davitt, supra. But it may not bring, forward new subject-matter, Ashe-Carson Co. v. Bonifay, 147 Ala. 376, 41 So. 816, and must bear upon the issues made by the original bill. Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450; 21 Corpus Juris 508, et seq.; Shelton v. Carpenter, 60 Ala. 201. These rules have not been affected by any change in the phraseology of the statute, and we find nq cases in conflict with them. Since the Code of 1852, § 2916, it has been provided that defendant may obtain relief against complainant for any cause connected with or growing out of the bill by making his answer a cross-bill. The act of 1885 (Code 1886, § 3460) added the right to such relief against a defendant also. Faulk & Co. v. Hobbie Grocery Co., supra; Abels v. Planters’ & Merchants’ Ins. Co., 92 Ala. 382, 9 So. 423. But there is still no right to bring in one, not already a party, by an answer which is made a cross-bill (Lamar v. Lincoln Reserve Life Ins. Co., 222 Ala. 60, 131 So. 223), whatsoever the issue might be. We adhere to that rule of pleading. See Gilman v. N. O. & S. R. Co., 72 Ala. 566; Haralson v. Whitcomb, 200 Ala. 165, 75 So. 913. But no point seems to be made in that respect in this suit, and it is waived. Lehman v. Dozier, 78 Ala. 235; Jones v. Robinson, 77 Ala. 499; Lanier v. Henderson, 227 Ala. 243, 149 So. 674. The cross-bill, in our opinion, sets up matter “wholly foreign to any issue between the parties to the original bill” to the extent that it is predicated on a contract not mentioned in the bill, and brings in parties against whom complainant seeks no relief, and it seeks independent relief on that contract, and against those parties, not for the benefit of complainant, nor to his *334 prejudice, but for its own benefit solely. Its purpose has no bearing on the issues made by the original bill. It comes squarely within the principle of the cases of Behan v. Friedman, supra, and Lowery v. Rosengrant, 216 Ala. 364, 113 So. 237. The cross-bill is, therefore, subject to the demurrer, and the decree sustaining it is affirmed. Affirmed. THOMAS, BROWN, and KNIGHT, JJ„ concur. ANDERSON, C. J., and GARDNER and BOULDIN, JJ„ dissent.