Opinion
7 Div. 186.
April 23, 1953.
Appeal from the Circuit Court, Calhoun County.
Knox, Jones, Woolf Merrill, Anniston, for appellants.
A bill for accounting implies that there are items on both sides, and must contain an offer to do equity. Hamilton v. Terry Furniture Loan Co., 206 Ala. 622, 91 So. 489; Young v. Dean, 253 Ala. 211, 44 So.2d 12; Shamblee v. Wilson, 233 Ala. 164, 165, 170 So. 769. It was error to overrule demurrer to that aspect of the bill seeking a lien.
Young Young, Anniston, for appellee.
A bill for accounting may, as ground for cumulative relief, pray for establishment of a lien on respondent's property for money found to be due complainant. Mobile v. McCown Oil Co., 226 Ala. 688, 148 So. 402. The mere filing of a bill for accounting implies an offer on complainant's part to pay any balance that might be found owing to respondent. Hence, it is not necessary that the bill contain an offer to do equity. Phillips v. Sipsey Coal Mining Co., 218 Ala. 296, 118 So. 513; Grand Bay Land Co. v. Simpson, 205 Ala. 347, 87 So. 186; Nelson v. Dunn, 15 Ala. 501. When a bill shows that complainant is not required to do anything in good conscience as a condition to granting relief, it is not necessary to offer to do equity. Young v. Dean, 253 Ala. 211, 44 So.2d 12; Head v. Carroll, 230 Ala. 688, 163 So. 328; Davis v. Anderson, 218 Ala. 557, 119 So. 670. In such bill complainant may aver that he is not indebted to respondent. McDonald v. Railway Fuel Co., 223 Ala. 615, 137 So. 659.
Appeal from a decree overruling demurrer to a bill for accounting and discovery.
But one question merits discussion; that is, whether or not in a simple bill for accounting and discovery, where the complainant alleges that he is indebted to respondent in no sum, it is essential, as against appropriate demurrer, for the bill to offer to do equity.
Our cases hold to the affirmative of the question. Such a bill contemplates that if on an accounting the complainant is found to be indebted to respondent in any sum, the complainant ought to be adjudged to pay such amount. Hence, the rule that the bill is demurrable where there are no allegations offering to do equity. Apt demurrer took the point and the decree must accordingly be reversed for the contrary ruling. Young v. Dean, 253 Ala. 211, 44 So.2d 12; Shamblee v. Wilson, 233 Ala. 164, 170 So. 769.
The above principle in no way impinges upon such cases as Phillips v. Sipsey Coal Mining Co., 218 Ala. 296, 118 So. 513, and those there cited, which hold to the general effect that an offer to do equity is implied in every bill for accounting and the absence of such averment does not preclude relief. The essence of these and similar holdings is that on a hearing of the evidence, the defendant may have relief without the interposition of a cross-bill, even though there is no offer to do equity in the original bill. But these cases do not import a holding that if appropriate demurrer questions the bill for its failure to offer to do equity, it is not subject to demurrer on that ground.
Nor is the bill relieved from such an allegation under the rule that a bill need not offer to do equity which shows that the complainant is not required to do anything in good conscience as a condition to the granting of relief. Such cases are Head v. Carroll, 230 Ala. 688, 163 So. 328, and Davis v. Anderson, 218 Ala. 557, 119 So. 670, where it was made apparent from the face of the bill that under no sort of circumstances would any liability for any amount be imposed upon the complainant as a condition to relief.
The other point argued with reference to the prayer for the fixation of a lien on defendant's property is without merit. A bill, otherwise good, is not subject to demurrer because it prays for more (a question not determined) than the equities of the case justify. Zimmern v. Williams, 190 Ala. 442, 67 So. 277; Walshe v. Dwight Mfg. Co., 178 Ala. 310, 59 So. 630.
Reversed, rendered and remanded.
STAKELY, GOODWYN and MERRILL, JJ., concur.