Merchants' Bank of Mobile v. Zadek
Merchants' Bank of Mobile v. Zadek
Opinion of the Court
The errors assigned by appellant are sufficiently definite and precise. They show the ruling of the court at which the. appellants complain. They are in writing upon the transcript. They state concisely in what the ■error consists. The motion to strike out the assignments of error is overruled. Amerson v. Coronoa Coal Co., 194 Ala. 175, 69 South. 601.
This is the third time this cause has appeared in this court on decree on demurrers •either to the bill of complaint as originally framed or as amended. We find it first in 203 Ala. 51S, 84 South. 715 (Merchants’ Bank of Mobile v. Zadek), and next in 204 Ala. 396, 85 South. 552. It is here now on demurrers to the bill of complaint as last amended. The court overruled the demurrers, and this ■decree is assigned as error.
The facts, appearing from the pleadings , are clearly stated in the opinion on the first appeal, and it is not necessary to repeat them here. 203 Ala. 518, 84 South. 715. In the first opinion it was declared that the bill contained equity for an accounting to redress the alleged individual wrongs of complainant and others, as composition creditors of the E. O. Zadek Jewelry Company, a corporation, but that the corporation was a necessary party to the suit. The opinion intimated that the bill was probably multifarious by complainant seeking also as a stockholder of the Zadek Jewelry Company to redress alleged wrongs to the corporation. 203 Ala. 518, 84 South. 715.
In the second opinion, 204 Ala. 396, 85 South. 552, it was declared that complainant, a composition creditor of the Zadek Jewelry Company, a corporation, who was also a stockholder of the corporation, could not in the same bill seek redress for individual wrongs and wrongs against the corporation; no circumstances authorizing it being shown. The corporation alone could enforce whatever rights of redress it had; and neither its composition creditors nor its stockholders could do so. The bill as then amended was pronounced multifarious by that opinion. Zadek v. Merchants’ Bk. of Mobile et al., 204 Ala. 396, 85 South. 552.
The bill has been again amended. The appellants insist that it is still multifarious. It seeks an accounting of the business by the respondents, the banks, as trustees of the E. O. Zadek Jewelry Company, growing out of the composition settlement under bankruptcy proceedings of the jewelry company, and requiring the trustees from the proceeds of the sale of its property to pay the amount due complainant as composition creditor before settling with the jewelry company, and to declare paid certain notes given by the jewelry company, which are indorsed by complainant and which are in the custody and control of the banks, respondents, as such trustees, and that the court direct that these notes be delivered to the maker, the Zadek Jewelry Company.
The bill as last amended conforms to the law expressed in the opinions heretofore written in this cause (203 Ala. 518, 84 South. 715; 204 Ala. 396, 85 South. 552), and the court below did not err in overruling the demurrers to it.
Affirmed.
Reference
- Full Case Name
- MERCHANTS’ BANK OF MOBILE Et Al. v. ZADEK Et Al.
- Cited By
- 4 cases
- Status
- Published