Shelton v. Timmons

SOMERVILLE, J. The primary purpose of the bill of complaint is to follow and subject to complainant’s demand the proceeds of money fraudulently donated by complainant’s debtor to. several of his nieces, wdio are made parties defendant. This is an independent equity, and of itself suffices for the maintenance of the bill.—Dickinson v. National Bank, 98 Ala. 546, 14 South. 550. It is not necessary that such a bill should be sworn to> even though it pray also for a discovery by the defendants of the property in which they have invested the money fraudulently transferred to' them. Such discovery is incidental and auxiliary merely, and the equity of the bill is in no wise dependent thereon.—Plaster v. Throne F. Shoe Co., 123 Ala. 360, 365, 26 South. 225; Montgomery Iron Works v. Cap. City Ins. Co., 137 Ala. 134, 146, 34 South. 210; Burke v. Morris & Co., 121 Ala. 126, 25 South. 759. [291] Where the equity of the bill rests upon discovery alone, the bill must, of course, be sworn to. In this case a verification being unnecessary, no question can be raised as to its sufficiency. So, also, the allegations necessary to support an independent bill for discovery (see King v. Livingston Mfg. Co., 180 Ala. 118, 60 South. 143) are not required, where the discovery sought is in aid merely of another and primary equity.—Crichton v. Hayles, 176 Ala. 223, 57 South. 696; Virginia, etc., Co. v. Hale & Co., 93 Ala. 542, 546, 9 South. 256. In the latter case any defendant may be called upon to disclose matters which are relevant to the issue, and legally admissible as evidence. As amended, the bill sufficiently charges as a fact, on information and belief, that the defendants used the money in question in the purchase of real estate, the description of which is unknown to complainant. The bill is not defective in omitting the personal representative of complainant’s deceased debtor as a party defendant.—Davis v. Stovall, 185 Ala. 173, 64 South. 586; Staton v. Rising, 103 Ala. 454, 15 South. 848; Bank v. McGee, 108 Ala. 306, 19 South. 356; Coffey v. Norwood, 81 Ala. 512,. 8 South. 199; Reed v. Minell, 30 Ala. 61; Inge v. Boardman, 2 Ala. 331. In Harris v. Moore, 72 Ala. 507, it was stated that the debtor himself was a necessary party. This was evidently an inadvertence, and the real ruling was, on demurrer for misjoinder, that he was a proper party. Obviously there can be no distinction between the case of a living debtor and the personal representative of a deceased debtor, as is clearly shown in the case of Coffey v. Norwood, supra. These being the only matters argued in brief of counsel, and there being no merit in these grounds of de [292] murrer, the decree of the chancery court will be affirmed. Affirmed. All the Justices concur.