Hartley v. Bloodgood , 16 Ala. 233 ( 1849 )

DARGAN, J.

As the complainant’s demand is purely legal, being a simple contract debt, he cannot apply to a court of equity, independent of statute aid, for its collection, unless the object of the bill had been to enforce a lien against property bound for its payment. Saunders & McLaughlin v. Watson, 14 Ala. Rep. 198; Reese & Heylen v. Bradford, 13 Ala. Rep. 837, and the cases there cited. But by the Act of the 5th of February 1846, a creditor may, if his debtor be a non-resident of the State, file his bill in equity, although his debt be not reduced to judgment, to have the property of his debtor attached, whether it be real or personal, or whether his title be legal or equitable, and can subject the -same to the satisfaction of his demand. Under this statute the bill contains equity, for although an attachment is. not prayed, but an injunction only, yet we think that the fund sought to be condemned, being an equitable right to a sum of money, may be as well brought under the power and control of the court by an injunction, as in any other manner.

2. But when the title or interest of a debtor is of an equitable nature, the creditor who seeks to condemn it in .satisfaction of his debt, must make all persons interested in the subject matter, parties to his bill, in order that they may have an opportunity tp contest the- right of the • debtor. He. should malve all persons parties whom it would be necessary to make parties,, if the debtor, instead of the creditor,-was the complainant. The other distributees of Thomas McDaniel, deceased, should therefore have been made defendants, in-order that the Court of Chancery might be able to ascertain the amount to which William McDaniel was entitled, and thereby be enabled to decree payment directly from the administrator to the complainant without further proceedings or' delay.

3. Where a defendant to a bill is a iron-resident, and service has been perfected by causing' publication to be made in the manner prescribed by the- 40th rule of Chancery Practice, the complainant, if the defendant has failed to- answer, will be entitled to a decree pro confesso, and as against him need not prove the allegations of his bill. Arnold v. Sheppard, 6 Ala. 299. But the record must show that the publication was made in the manner pointed out in the-rule, or the decree-cannot be sustained. It is true that if the recitals of the decree show that proof was made of those facts required to perfect service against a non-resident, we should not reverse because the evidence itself is not contained in the record, (Butler v. Butler, 11 Ala. 668); but the recitals must contain the facts necessary to constitute good service, and the mere statement that publication was made in due or proper form, is, in our opinion, insufficient, as it is an averment of a legal conclusion; rather than a statement of facts from which this conclusion would result. This record does: not contain the evidence of publication, and the decree recites merely that proper publication was made. This recital is insufficient Í it should have stated the manner in which it was made.

4th. We do not think it was necessary to prove the execution of the note as against Hartley. He is- a mere trustee as to the' interest of William McDaniel, whose interest only is sought to’ be subjected; and as the existence and execution of the note is established by a decree pro confesso against him, it is not necessary to- prove it as against the trustee, for if the cestui que trust admits or confesses the right of the complainant, this must be- conclusive on the trustee.

We do not deem it necessary to examine the- other' questions raised by the assignment of errors: they all relate to questions of practice, which will not probably again arise.:— The decree must be reversed, and the cause remanded, that the complainant may amend his bill by making the other distribu-tees parties, if'he- sees fit to do sos.