Terrell v. Southern Railway Co.

MAYFIELD, J. The bill in this case is one for discovery and relief, as well as for discovery in aid of a pending action at law. It is not, as appellants treats it, purely and solely for discovery in aid of a pending suit. (1) The bill seeks to discover to which of the two defendants the complainant is liable, if liable at all, as to matters set forth in the bill — alleging that it may be liable to one or the other, but not to both, and that it cannot know specifically which, except by discovery. — 435 — (2) It shows the necessity for, and seeks, an aecouning, to ascertain the amount of complainant’s liability to one or to the other of the two respondents. (3) It seeks to protect complainant against an action by each of the respondents to enforce the same liability which it owes to one or to the other, but not to both. (4) It seeks this discovery in defense of an action at law brought against complainant by one or the respondents. (5) It seeks to enjoin this action at law by one of the respondents until the discovery and accounting can be had, which it alleges to be necessary to complainant's proper defense therein. It is true, as claimed, by appellant, that a bill of discovery solely in aid of a defense to action at law will not lie against one who is not a party to the record at law. — Anderson v. Dowling, 11 Ir. Eq. Rep. 590; Kerr v. Rew, 5 Myl. & C. 154, 9 L. J. Ch. 148, 4 Jur. 525; Portugal (Gueen) v. Glyn, 7 Cl. & F. 466; Storys Eq. Pl. §§ 569, 610, and note; 14 Cyc. 310; Burgess v. Smith, 2 Barb. Ch. (N. Y.) 276. While the respondent corporation is not a necessary or proper party to the hill, in so far as it is a bill for discovery in aid of the defense to the suit brought by the other individual respondent — if there be separate and distinct parties, and the corporation be not a. mere business name of the other individual defendant, or the individual be not a mere alter ego of the corporation — yet it is a part of the relief sought to ascertain the relation of the two respondents, one to the other; Avhether they are one and the same or different parties, and, if different, to determine Avhich of the two dealt with the complainant in the matters set forth in the bill, upon which an accounting is sought. This information is alleged to lie. — 436 — and of necessity must lie, peculiarly within the knowledge of the respondents. So this phase of the bill not only makes the corporation a proper, but necessary, party. I cannot agree with the appellant that the bill shows that the complainant has a complete and adequate remedy at law. If the averments of the bill are true — and on demurrer they must-be so taken — the complainant might be compelled to answer to both of these respondents severally for the same identical demand; and an accounting is necessary to ascertain the amount of its liabaility to either. A bill for discovery must allege that the complainant- is unable to prove the facts otherwise than by defendant’s answer. This is better done by averment of the facts themselves, than by the mere conclusion of the pleader to that effect. If the facts averred show it, the conclusion of the pleader to- the result is unnecessary; and in fact the conclusion of the pleader, unsupported by an averment of the facts upon which it is based, would be insufficient. I think the averments of the bill sufficient, as to this requisite of equity pleadings. Of course, so far as the bill is one merely for discovery in aid of the defense to the action at law, it must be confined to a discovery of such matters only as relate to the defense, and it cannot be extended to a discovery of evidence which goes only to the maintenance of the action at law; and if this bill was one merely for discovery in aid of such defense it would be subject to demurrer on this ground, but, as before stated, it is one for relief independent of the defense to the pending-suit at law. It is also true that a bill for discovery merely in aid of the defense to a pending action-at law must show that the discovery is indispensable to the ends of justice, and that the defendant is capable of — 437 — giving the discovery sought, and it must show the nature of the defense, and the particular matters sought to he discovered with certainty; bnt, as said before, this is better done by averment of the facts which show these respective requisites than by a mere bald averment of the abstract propositions of law, which are mere legal conclusions of the pleader. I think the bill does conform to each of these requirements. The bill also seeks an accounting. It is contended by appellant that the allegations of the bill are not sufficient to give it equity for this purpose. In this I cannot agree with counsel for appellant. It may be that there is really no ground for taking this case into equity. It may be that it is filed for delay; but we cannot know this from the allegations of the bill. The allegations do not allege it; but the allegations seem to me to conform to the rules and requirements of equity pleading, to the extent of giving the bill equity for the purposes of discovery and accounting. Upon this hearing the demurrer confesses these allegations, which are well pleaded, and we must treat them as true. Can it be said that, if the facts alleged in this case are true, an accounting is unnecessary? It is probably true that a jury might be able to arrive at a conclusion as to the proper amount due on an accounting. This might be said as to all cases; but the rules of practice and procedure in chancery courts are better adapted to stating accounts than are those in courts of law. A court of equity will entertain jurisdiction of an accounting at the instance of a defendant in a law court, and enjoin such action, when the defense at law is inadequate by reason of the complexity of the accounting or otherwise. Mutuality of the accounts, of course, adds to the difficulty of accounting, and may give equity for this purpose when the bill would not have equity — 438 — but for the mutuality; but it is not indispensable to .equity jurisdiction for accounting. If the accounts be wholly on one side, but are numerous, complicated, and difficult, and extend over a considerable period of time, and involve many transactions, an accounting in equity would be proper. — Ely v. Crane, 37 N. J. Eq. 157; Crane v. Ely, 37 N. J. Eq. 564; Hall v. McKellar, 155 Ala. 508, 46 South. 460; Story, Eq. Jur. § 458; Dallas County v. Timberlake, 54 Ala. 410; 6 Pomeroy, Eq. Jur. (2 Eq. Rem.) § 930, and note; 5 Am. & Eng. Dec. Eq. p. 65, § 9. Discovery alone is an independent ground of equity jurisdiction; but this jurisdiction is auxiliary to some other relief, and it must be limited to its legitimate functions. The bill in this case cannot or should not be treated as a bill for discovery merely. It also invokes other equity jurisdictions, and, moreover, seeks a decree involving the rights of the parties as to the subject-matter. It is, therefore, a bill for relief, as well as for discovery. ' The discovery is incidental to the relief sought, as well as to the action at law enjoined; and it must therefore be treated and tested by the rules of equity pleading and practice applicable to bills for discovery and relief. The bill alleges that the facts necessary to defend the action at law, or to state the account in this court, rest peculiarly within the knowledge of the defendants, and that a discovery is absolutely necessary to ascertain them; that the books of these two defendants are necessary to be produced in court, to properly state the account, or to defend the action at law, and that a discovery from both respondents is necessary to determine to which of the two the complainant is liable, if liable to either; that complainant’s dealings in the premises were with the respondent corporation, but that the in — 439 — dividual respondent, who was its general manager, is suing the complainant as to these transactions with the respondent corporation, and that without the discovery complainant cannot know by what claim of right the respondent Terrell sues or claims — whether ag assignee or transferee of the corporation or as an original principal; that evidence necessary to establish the ownership of a certain quarry that furnished the stone hauled by the complainant, which is the subject of this litigation, rests exclusively with the two respondents, and that the evidence to show who is the rightful legal or equitable owner of the claims against the complainant, growing out of the hauling of such stone, likewise rests with the respondents; that the nature, amount, or ownership of such claims cannot be ascertained, except by this bill of discovery, and that the discovery is necessary for complainant’s relief; that without it it might be compelled to answer twice for the same claims. The bill I think is sufficiént, and the demurrers were properly overruled. — Virginia, etc., Co. v. Hale & Co., 93 Ala. 546, 547, 9 South. 256. I do not mean to say or decide that, if this .bill were one for discovery merely, it would be sufficient, and not subject to the demurrers interposed; nor do I think that, if it Avere one for an accounting only, it would be sufficient, but that, being, as it is, one for both purposes, and the one ground of equity cognizance made auxiliary of and necessary to the other, the averments as to one purpose avoid the averments as to the other, the insufficiencies in one respect are aided and cured by the averments as to the other. For a like reason the bill is not a bill of interpleader. It is not filed for that purpose, and its averments are not sufficient to support it as a bill of interpleader, or one in the nature thereof; yet it contains averments — 440 — which are in the nature of, or closely akin to, the necessary averments of a bill of interpleader, which aid the averments as to discovery, as to an accounting, and as to necessary and proper parties to the suit. Without these, averments it might not be suffitcient for the purposes for which it is filed. The equitable doctrine comes into play in this case that, equity jurisdiction having interposed and attached for one purpose, the chancery court, thus acquiring jurisdiction for the one purpose, will proceed to grant full and complete relief, and to settle all equities between the respective parties as to the particular subject-matter. — Booth v. Foster, 111 Ala. 312, 20 South. 356, 56 Am. St. Rep. 52; Whaley v. Wilson, 112 Ala. 627, 20 South. 922; Virginia, etc., Co. v. Hale & Co., 93 Ala. 542, 9 South. 256. Equity jurisdiction for accounting is not exercised in every case of .accounts. Some special case must be alleged; that is, the accounts must be intricate, difficult, or complicated, or mutuality or a fiduciary relation between the parties must exist, or a discovery must be necessary, or some other ground purely equitable must be involved. — Tecumseh v. Camp, 93 Ala. 547, 9 South. 343; Avery v. Ware, 58 Ala. 475; Jewet v. Bowman, 29 N. J. Eq. 174. In the case in question the ground for discovery is therefore a. ground for accounting; thus the one ground supplements the other. It is well settled in this state that original' equity jurisdiction as to discovery is not destroyed or affected by the statutory discovery, by which the parties to actions in courts of law and in chancery may examine one another on interrogatories, nor by the statutory changes as to the competency of parties as witnesses. — Shackelford v. Bankhead, 72 Ala. 479; Cannon v. McNab, 48 Ala. 99; Wood v. Hudson, 96 Ala. 471, 31 South. 530; Handley v. Heflin, 84 — 441 — Ala. 600, 4 South. 725; Horton v. Moseley, 17 Ala. 794; Mallory v. Matlock, 10 Ala. 595. These statutes are treated and intended as merely cumulative remedies, and are treated and governed by the rules as to bills of discovery. — Saltmarsh v. Bower, 22 Ala. 221; Cain v. Standard Co., 108 Ala. 346, 18 South. 882; Crymes v. White, 37 Ala. 549. The majority of the court do not agree to all that is said above in this opinion, nor in the conclusion reached by the writer. It is therefore the opinion of the writer only. The majority hold that there is no equity in the bill, and that it should have been dismissed on respondent’s motion, and the injunction dissolved. It therefore follows that the decree appealed from must-be reversed; and a decree will be here rendered dismissing the bill and dissolving the injunction in the chancery court. Reversed and remanded. Dowdell, C. J., and Simpson, Anderson Denson, McClellan, and Sayre, JJ., concur. Mayfield, J., dissents.