McDonnell & Co. v. Finch , 131 Ala. 85 ( 1901 )

TYSON, J.

Leaving out of view all conclusions of the pleader, and confining our consideration to the facts alleged in the bill, a clear case is- made to have the writs ■of attachments! declared fraudulent. — First Nat. Bank v. Acme White Lead & Color Co., 123 Ala. 344, and •cases cited. Indeed, it is the only relief that could be granted upon proof of the facts averred. Clearly no case is made by it to have the attachments declared •a general assignment. As a bill for that purpose with the conclusions of the pleader in or out of it and the special prayer in or eliminated, it would be without •equity. — Builders & Painters Supply Co. v. Lucas & Co., 119 Ala. 202.

■ If upon the facts alleged the bill is without equity, the conclusions of the pleader predicated upon those ■facts, whether in the charging part of the bill or in the .special prayer or in both cannot import equity into it. And the converse of the proposition is equally true, if u pon the facts alleged the bill has equity, conclusions1 of the pleader and the special prayer will not destroy that equity. The real character of a suit in equity is to be determined from a consideration of the matters of substance embodied in the pleadings. — Ex parte Smith, 34 Ala. 455; Sayre v. Elyton Land Co., 73 Ala. 86. In cases of the character of the one under consideration, the facts upon which the relief sought depends, and not the conclusion of the pleader, constitute the substance of the bill and must control in determining its equity. Strickland v. Gay, Hardie & Co., 104 Ala. 375. This principle has often been applied by this court in analogous cases which involved the question under consideration. It has been uniformly held, in consonance with this principle, that a mere general averment, without a statement of the facts, is insufficient upon which to pronounce judgment. And that a demurrer to such a bill confesses only the matters of fact which are well pleaded and not the 'conclusions of law or fact averred. Flewellen v. Crane, 58 Ala. 627; Pickett v. Pipkin, 64 Ala. 520; Penny v. Jackson, 85 Ala. 67; Jones v. Massey, 79 Ala. 370; Chamberlain v. Dorrance, 69 Ala. 40.

The bill under consideration is strikingly similar in' averments and special prayer to the one passed upon by this court in Steiner & Lobman v. Parker & Co., 108 Ala. 357, in which the general averments or conclusions and the special prayer were disregarded and effect was given to the facts alleged in conjunction with the general prayer for relief. And the decision in that case i'S1 conclusive of the questions raised in this.

It has never been supposed that a special prayer could be made the basis for relief inconsistent with the facts stated in a bill, or could impair its equity. Under it the court could only grant such relief as the cases stated will justify. If no case is made, no relief could be granted —and if a case is stated which is inconsistent with the special prayer, relief may be granted under the general prayer, but'not under the special prayer.' — Bailey v. Burton, 8 Wend. 339. For “a complainant can have no greater relief than the facts alleged in his bill warrant.” — First Nat. Bank v. Acme White Lead & Color Co., supra; May v. Lewis, 22 Ala. 646; Betts v. Gunn, 31 Ala. 219; Munford v. Pearce, 70 Ala. 452; Rice v. Eiseman Bros., 122 Ala. 343.

The learned chancellor in refusing to allow the amendments proposed by the complainant proceeded upon the theory that the purpose of the bill was that of declaring the attachment proceedings a general assignment, and that, therefore, the amendments offered were a departure; a conclusion reached by him, doubtless, upon consideration of the general averments and special prayer, ignoring the facts alleged and the general prayer. Perhaps it was upon this theory that he dismissed the bill for want of equity.

The decree dismissing the bill will be reversed and the cause will be remanded in order that the bill may be amended, if the complainants so desire, in conformity with the views we have expressed.

Reversed and remanded.