Baisden v. City of Greenville , 215 Ala. 512 ( 1927 )

This is a bill in equity filed by Claude Baisden against the city of Greenville, a municipal corporation. He is over 21 years of age, resides within the corporate limits of this municipality, and is a taxpayer, owning property therein.

This city enacted a valid ordinance, according to the averments of the bill, providing for curbs and gutters on portions of certain streets in this city, and a contract was duly let to and made with one P. H. Tharpe therefor, who was the successful bidder. Tharpe under his contract did some of the work, then he abandoned it; and the contract between the city and him was canceled. A contract was then awarded by the city to Robert L. Kenan, the successful bidder, on the work remaining undone and described in the ordinance, and the approximate amount of the work remaining unfinished at the time of letting this contract to Kenan by the city was $100,000.

The complainant seeks by the bill to prevent by injunction the making and issuance by the city of the temporary notes monthly, mentioned in the contract, to pay in part for the work done and material furnished, and from afterwards issuing the bonds mentioned in the note and contract, and that the city be enjoined from carrying out the contract. The defendant demurred to the bill, which was incorporated in answer to it. The cause was submitted to the court on bill, demurrers, and answer, for decree on demurrers to the bill, and on application for temporary injunction. The court by decree sustained the demurrers to the bill and denied the application for injunction. The complainant appeals from that decree, and it is the error assigned and argued.

It appears on the face of the bill by this contract between the city and Kenan that the temporary notes to be made and issued monthly are to be made payable to, and to be delivered to, Robert L. Kenan in part payment for the work done during the month by him. The contract is between the city and Kenan. The bill seeks to cancel this contract and to prevent and enjoin the making and issuing of the notes to him mentioned therein.

The form of the notes to be given is a part of the contract, appearing in the bill, and each is made payable to Robert L. Kenan. The form of the bond mentioned in the note and in the contract appears in full in the bill. Yet Robert L. Kenan is not a party to this cause. He was not a party before the trial court when the cause was submitted and the decree rendered. He is a party to the contract, materially interested therein, which complainant seeks by the bill to enjoin the city from carrying out with him. He has a material interest in the contract, the subject-matter of the cause, which will be necessarily affected by the decree. The validity of his contract with the city is involved in the issue. The validity of this contract is the question presented for review. This makes him a necessary, indispensable party to the cause. His rights thereunder should not be adjudicated, unless he has full opportunity to appear and vindicate them. This contract should not be declared invalid in whole or in part, nor held valid in its entirety, as presented by the averments and prayer of the bill, without making him a party to the cause with full opportunity to present his rights thereunder. Prout v. Hoge, 57 Ala. 28; Wilkinson v. May, 69 Ala. 33; Harwell v. Lehman, 72 Ala. 344,346; Hodge v. Joy, 207 Ala. 198, headnote 25, 92 So. 171.

Neither the demurrers nor the answer of the city suggest or raise the question that he is a necessary party, unless it was raised by the general demurrer that there is no equity in the bill. However, he is such a necessary and indispensable party to this cause that it could not be properly disposed of by the trial court or this court without his being made a party, with opportunity to be heard in the court below and in this court; so this court must ex mero motu decline to pass on the questions presented, as Robert L. Kenan is not a party to the cause. Travis v. First Nat. Bank, 210 Ala. 620, headnote 5,98 So. 890; Carwile v. Crump, 165 Ala. 206, headnotes 4 and 5,51 So. 744; Sawyers v. Baker, 66 Ala. 292, headnote 2; Prout v. Hoge, 57 Ala. 28, headnote 3; and authorities supra.

The bill is fatally defective, as Robert L. Kenan, a maker of this contract with the city, is not a party to the cause; so the decree is affirmed, and the complainant is allowed 30 days within which to amend the bill, should he so desire.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

On Rehearing.