Ex Parte Conradi , 210 Ala. 213 ( 1923 )

Appellant mistakes the averments of the petition contained in the opinion for a statement by the court of the effect of the "prayer for process" to the alleged cross-bill by Herman G. Schoenherr. However, the quotations as indicated in the original opinion (which has been corrected) no doubt led to that result. It is declared that a cross-bill is required to be as perfect as an original bill. Hooper v. Armstrong, 69 Ala. 343; Cooper v. Cooper (Ala. Sup.) 97 So. 66;¹ Haralson v. Whitcomb, 200 Ala. 165, 75 So. 913; Farmers' State Bank v. Kirkland Brackin, 200 Ala. 146, 75 So. 894; 21 C. J. p. 507, § 612. There was no footnote to the cross-bill as originally filed or as amended. Code 1907, §§ 3096, 3119; Sims, Ch. Pr. p. 424, § 645; chancery court rules 11, 12, p. 1531, Code 1907; Cooper v. Cooper, supra. See analogy contained in Pool v. Menefee, 205 Ala. 531, 88 So. 654; Enslen v. Allen,160 Ala. 529, 537, 49 So. 430; Douglass v. Blake, 189 Ala. 24,29, 66 So. 617; Barnett v. Tedescki, 154 Ala. 474,45 So. 904; Paige v. Broadfoot, 100 Ala. 610, 13 So. 426; McKenzie v. Baldridge, 49 Ala. 564.

When there is prayer for parties respondent to the cross-bill and appropriate relief is prayed, it is held sufficient to make parties thereto those named in the original bill, without notice, etc. Julian v. Woolbert, 202 Ala. 530, 533, 81 So. 32; Ex parte Woodruff, 123 Ala. 99, 101, 102, 26 So. 509; Jackson v. Putman, 180 Ala. 39, 60 So. 61. The cross-bill must be answered under the rules and regulations provided for original bills, under oath or not, as the complainant therein may elect. Sims, Ch. Pr. p. 424, §§ 300, 301, 645; Code 1907, § 3019. See, also, Sims, Ch. Pr. p. 9 et seq., §§ 13-19. So of bills in the nature of cross-bills. Reynolds Co. v. Reynolds,190 Ala. 468, 67 So. 293. This is necessarily the fact. It is generally recognized that the dismissal of the original bill does not "necessarily carry with it the cross-bill" (Faulk Co. v. Hobbie Gro. Co., 178 Ala. 254, 59 So. 450; Swope v. Swope, 178 Ala. 172, 59 So. 661; Abels v. Planters', etc., Co., 92 Ala. 382, 9 So. 423); the distinction being made that, if the cross-bill is defensive merely (having no independent equity in itself), dismissal of the original bill dismisses the cross-bill (Anders v. Sandlin, 191 Ala. 158,67 So. 684; Faulk Co. v. Hobbie Grocery Co., supra; McGlathery v. Richardson Bros. Co., 129 Ala. 653, 29 So. 665; Wilkinson v. Roper, 74 Ala. 140). If, however, it sets up new facts, relating to the same subject-matter, and prays for affirmative relief in reference to it, and presents a case for equitable cognizance (Todd v. Interstate, etc., Co., 196 Ala. 169,173, 71 So. 661; Betts v. Ward, 196 Ala. 248, 258,72 So. 110; Lewis v. Davis, 198 Ala. 81, 83, 73 So. 419; Webster v. Debardelaben, 147 Ala. 280, 285, 41 So. 831; Meyer v. Calera Land Co., 133 Ala. 554, 557, 31 So. 938; Etowah, etc., Co., v. Wills Valley, etc., Co., 121 Ala. 672,676, 25 So. 720), and shows grounds for equitable relief which uphold the jurisdiction of the court independent of the original bill, the dismissal of the latter does not carry the former (Anders v. Sandlin, 191 Ala. 158, 67 So. 684; Bell v. McLaughlin, 183 Ala. 548, 62 So. 798; Swope v. Swope, supra; Meyer v. Calera Land Co., supra; Ex parte Jones, 133 Ala. 212,32 So. 643; McGlathery v. Richardson Bros. Co., supra; Etowah, etc., Co. v. Wills Valley, etc., Co., supra; Abels v. Planters, etc., Co., supra; Wilkinson v. Roper, 74 Ala. 140,145, 146; Continental, etc., Co. v. Webb, 54 Ala. 688; 2 Dan. Ch. Pr. [5th Ed.] *1553, note 3).

It follows that a statutory cross-bill, or an intervention in the nature of a cross-bill, to be sufficient, must be complete in itself, or by reference to matters adopted therein, as is recognized by this court (Reynolds Co. v. Reynolds, 190 Ala. 468,67 So. 293); that is, when it has an independent equity in itself, it must be so framed as to stand on its own merits in event the original bill should be dismissed (Cooper v. Cooper [Ala. Sup.] 97 So. 66²), and must acquaint the parties respondent thereto what answer is required within the statutes and rules obtaining and applying to such procedure in equity (Code 1907, §§ 3096, 3119; chancery court rules 11, 12, Code 1907, p. 1531).

The rehearing is denied.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.

¹ Ante, p. 13.

² Ante, p. 13.