Montgomery Iron Works v. Capital City Insurance , 137 Ala. 134 ( 1902 )

DOWDELL, J.

The: appeal in .this case, m.prosecuted .from the decree -of the city .court, overruling. the -respondents’ demurrer.,to the bill and motion to dismiss the same .for want of equity. On such appeal rulings, .of the court on objections to the allowance .of an amendment to the bill, and.on.motion to strike the amendment, can not be considered, although such rulings , may .be embodied in the decree.,on. the demurrer. The decree is interlocutory, and the appeal is allowable only by- virtue of tlie statute, and cannot be extended by the court ,to other interlocutory orders, than those mentioned- in the statute. The assignments of.error relating td the court’s action on objection to the amendment and, motion' to strike are, therefore, not to be considered by us. The question, however, on the amendment, as a departure, .is also presented by the demurrer to the bill, and to that extent, is properly, before, ns by the appeal.

The hill was originally filed by the complainant as a judgment creditor, and’ sought to- condemn equitable assets of the judgment debtor corporation in the. hands of other defendants, to the satisfaction of complainant’s judgment. In such proceedings other judgment creditors owning distinct judgments, might have properly joined with the complainant in the suit. — Brown v. Bates, 10 Ala. 433. If other creditors might have originally joined in the. suit, we see no reason why they -may n a subsequently be let in by amendment, though ,the effect- be to change the bill -from one by the individual creditor, into- a common creditors’ bill. The theory of the original bill as to the liability* of the defendants on their subscriptions for stock, and the purpose to compel .payment on such liability, is clearly preserved in the bill as amended. It is true, as stated by the learned judge, who heard the cause below, that the amended bill is amplified by the allegation of actual fraud in addition to the constructive fraud imputed to- the facts alleged in the original hill under the provisions contained in the constitution and statute, but this did not change the nature of liability on account of stock subscribed "for by the defendants. By the amendment, the complainant also seeks to further increase the liability of the defendants Dimmick and Baldwin by alleging as a part of the same fraudulent scheme to get stock for less than its value, they got $25,000 of the corporation’s! money for nothing. We concur in the conclusion of the city court, that the amendment did not work a departure.

■ It is contended by counsel for appellants, that the averments of the bill show that the Montgomery Iron Works was organized prior to the Code of 1886, and that the law in force at the time of its organization “did not require that the property conveyed in payment of stock should be equal in value to the stock, in payment of which it was conveyed as required by the law in force at the time the original bill was filed and as required by the law in force now.” And upon this contention, it is further contended that the bill is without equity. This question was thoroughly considered by this court in the case of the Elyton Land Co. v. Birmingham Warehouse & Elevator Co., 92 Ala. 407, where it was held that there was no distinction in principle as to liability on account of subscription for stock under section 1805 of the Code of 1876, and section 1560 of the Code of 1886. The purpose of both statutes being the same, to prevent the perpetra1 tion of frauds upon creditors by creation of fictitious values and false credit based on watered stock. The decision in the case above cited fully answers appellants’ contention.

The discovery sought is inciden,tal to tire main object of the bill. In such case verification of the bill is not required. — Burke v. Morris, 121 Ala. 126; Plaster v. Throne-Franklin Shoe Co., 123 Ala. 365.

The bill shows that the complainant recovered a judgment against the respondent corporation, Montgomery Iron Works, November 21st, Í895, upon which execution was issued and returned no property. Until this was done, the complainant’s right to maintain the present bill did not exist, or in other words, its right of action had not accrued. The statute of limitations does not begin to- run until the right of action has accrued. — Washington v. Norwood, 128 Ala. 383. The original bill was filed January 17th, :1896, and. the last amendment was filed September 16th, 1901. So it is made clearly to appear on the face of the bill, ■that- the amendment was filed within six years after the right of action accrued.

The bill as amended is not objectionable on the ground of multifariousness. — Hall & Farley v. Henderson, 114 Ala. 601; Burke v. Morris, 121 Ala. 130; Allen et al. v. Montgomery R. R. Co., 11 Ala. 437.

The decree of the city court overruling the demurrer and motion to dismiss is free from error, and the same will be affirmed.