Rugely v. Robinson , 10 Ala. 702 ( 1846 )

On a petition for a re-hearing, the court pronounced the following opinion:

PER CURIAM.

We have considered the petition for a, re-hearing, and think it should be denied.

It will be remembered the bankruptcy of the defendant, Eli Robinson, is not disclosed by the bill, and the complainants, by the allegations therein contained, made a case for equitable jurisdiction. In this condition of the cause, it is clear there is no reason to sustain the demurrers, either generally, because there is no equity in the bill, or for any of the special causes set up by the answers.

There is no ground to urge that a demurrer will reach a case, disclosed for the first time in the cause by the answers, whether of one or all the defendants.

The cause was heard in the court below on the bill and answers, and as there was no denial of the equity of the bill contained in either of them, in the estimation of a majority of this court, the only matter to warrant the dismissal of the bill, was the bankruptcy of the defendant, Eli T. Robinson. The disclosure of this fact did not destroy the equity of the complainants to proceed against the. equitable estate, and in our judgment went only to the personal discharge of the defendant asserting it. If the defence had been sustained by the chancellor on this ground it might hare been necessary to amend the bill, to prevent its dismissal in consequence of the necessity afterwards to introduce new parties, and very possibly too, new and distinct allegations, but instead of a decision which would allow the amendment, the whole foundation of the bill was swept away by the declaration that no lien whatever existed on the bankrupt’s estate,

It will be seen that no objection is taken to the bill, that proper parties are not made, and when the necessity for such parties becomes apparent, by ascertaining the fact of bankruptcy, there is no sound reason why the case should not stand over, in order to make them in this as well as in other causes. It is said, if the objection for want of parties, is not taken until the hearing, the complainant will be allowed a reasonable time to bring the proper parties before the court, by an amendment of the bill, or by a supplemental bill, unless it should appear the necessary parties are omitted in the bill, by the fraudulent or wilful omission, or the bad faith of the complainant. [1 Barbour’s Chan. Prac. 215, and cases there cited.] So too, with respect to the charge of fraud and collusion, which the defendants insist are necessary, when the assignee is made a party, if the concession is made that the allegation is important, even such an amendment has been allowed at the hearing. [3 P. Wins. 144; Pack v. Lord Clinton, 12 Vesey, .63.]

It may be assumed that whenever the substantial equity of a bill is not controverted at the hearing, and it then becomes apparent the cause cannot proceed without other parties, the bill should not be dismissed, but should stand over to allow them to be made. It is a mistake to suppose, in the present case, that the introduction of the assignee would be to make a new case. The relief sought would still be the same, and against the same property, although the interest of others, in the relief or the property, became apparent only at the hearing. It may well be questioned whether, at the hearing or after a decree, an amendment would be allowed, when its effect is to make a new case. [Denniston v. Little, 2 Sch. & Lef. 11 n.]

After all the consideration we can give this case, we are satisfied the decree previously pronounced must stand.

COLLIER, C. J.

I shall not now undertake to decide whether the bill will present a case to authorize the relief which my brethren suppose to be proper, even when other parties are made. The law being ruled against my views of the parties’ rights, I will not dissent from the order remanding the cause, that it may be thus amended. I incline to think that there should be no amendment allowed that will make anew case,but I reserve all other questions than that of making another party, for further consideration, should it be necessary.