Harton v. Johnston , 186 Ala. 247 ( 1914 )

McCLELLAN, J. —

Rerefence to the report of a former appeal in this cause (styled Empire Realty Co. v. H. M. Harton, 176 Ala. 99, 57 South. 763) will serve to render unnecessary an elaborate explanatory statement of the nature and purposes and presently more important features of the bill as it stood, after amendment at that time. On that appeal, in response to demurrer, it was, in substance, ruled that there was no sufficient averments of facts wherefrom it was legally shown or inferable that an unseparated, related fraudulent purpose or intent, entertained and acted upon by Johnston and Enslen, connected the alleged fraudulent conduct of them in respect of the rights or interests of the corporation — the rights of which the bill would conserve and vindicate — with their joint or separate act in procuring the issuance of the executions on the Lyons judgments and the sale of the complainant’s stock thereunder ; that the allegation that the effectuation of the sale and purchase of the stock was with a fraudulent purpose to defeat the right of complainant, as a stockholder, to proceed in behalf of the corporation was manifestly but the averment of a conclusion of the pleader. And these two distinct subjects of relief sought, they being without sufficiently averred connection, could not be comprehended in one bill, without rendering it multifarious.

After the remandment of the cause the bill was amended June 12, 1912. The report of the appeal will contain its statement. The court sustained demurrer to the bill as last amended. This appeal results.

After full consideration, by the court, of the bill as so amended, the opinion is entertained that the last amendment did not avail to avert the substantial deficiency pointed out on the former appeal. There is change of phraseology and an amplification of the averments of facts; but these facts do not, in any degree, tend to show a unity — a connecting prevalence — of a fraudulent purpose with respect to the alleged wrongs to the corporation and the asserted wrong to complainant in his individual capacity as a stockholder therein. So upon the authority of the case on former appeal, the decree is affirmed.

Affirmed.

Anderson, C. J., and Sayre and Somerville, JJ., concur.