Opinion
7 Div. 456.
October 8, 1959. Rehearing Denied January 21, 1960.
Appeal from the Circuit Court, DeKalb County, J. M. Snodgrass, J.
Loma B. Beaty, Fort Payne, for appellant.
Equity has jurisdiction to enforce liens of all kinds in absence of acquired jurisdiction by other courts and in absence of statutory liens. Code 1940, Tit. 33, § 1; Tit. 31, § 15; Loftin v. Smith, 251 Ala. 202, 36 So.2d 312. On demurrer a bill for discovery cannot be judged by the same strict rule of averment as bills merely for relief on full facts alleged. Alabama Butane Gas Co. v. Tarrant Land Co., 244 Ala. 638, 15 So.2d 105.
W. M. Beck, Fort Payne, for appellee.
It appears from the bill that Wallace Wooten (complainant) in 1938 conveyed a life estate to his father and mother in a farm located in DeKalb County. The father died in 1947 and the mother in 1956. The terms of the grant were in effect that the proceeds of the farm were to be used in payment of an outstanding mortgage and maintenance of the farm, any surplus to be paid to complainant. It is stated that Ernest Wooten (respondent) cultivated the farm from 1938 to 1945, and took the proceeds therefrom; that in 1945 complainant cultivated the farm, and in 1955 it was cultivated jointly by complainant and respondent. During 1949 and 1950 it was leased to and cultivated by a third party, and the proceeds paid to complainant. During the years 1946-1948, 1951, 1953, 1956 and 1957 Ernest Wooten cultivated and harvested the crops from the farm.
By paragraph 3 of the bill it is alleged that "during his tenancy Ernest Wooten has had the use and enjoyment of farm equipment", including a truck and two tractors, "as well as the use of the land. Said Ernest Wooten has never made, and refuses to make, a proper accounting of the proceeds from said farm. Ernest Wooten has exchanged and/or disposed of machinery or equipment belonging to plaintiff for new and/or different equipment, giving your petitioner an equitable interest therein. Said exchange was without the consent of plaintiff."
Paragraph 4 alleges that "plaintiff has an equitable right in the farm machinery and equipment now in the hands of the defendant, and is entitled to an accounting and payment of the proper shares from said farm. That without an accounting and discovery as to the machinery and equipment your petitioner has no way of determining his full equitable right from defendant."
Paragraph 5. "To that end, therefore, that complainant may have the relief herein sought, the respondent is required to make full, true and correct answers to the following interrogatories: * * * ", setting out the several questions propounded.
It is then alleged that it was necessary for complainant to employ an attorney to represent him and to conduct this cause, and whose services are for the benefit of all parties interested in the suit.
The prayer for relief is in substance that "respondent be required to discover or set forth on oath an answer to the foregoing interrogatories the total amount that he has received from the cultivation of said property and the use of the machinery thereon; * * * that the respondent be required to pay all rents, assessments and debts owed by respondent to complainant arising out of cultivation and farming of the place in question and determine the amount due complainant from said farm or farming operation."
After demurrer was sustained to the original bill new paragraphs were added by amendment, alleging in substance that during the years of his tenancy and harvesting of the crops on the farm, Ernest Wooten "fraudulently commingled the products of respondent and your complainant, marketing the same in his own name and receiving the proceeds therefrom. The said Ernest Wooten fraudulently concealed the amount of products harvested and the unit price therefor. During some of the years stated complainant and respondent purchased crop supplies jointly in the joint venture. The respondent fraudulently applied some of the supplies to the production of his own industry."
Paragraph B alleges that respondent fraudulently exchanged or disposed of machinery belonging to complainant for new or different equipment.
Paragraph C reads: "That the accounts pertaining to the sale of the proceeds from said farm during the period of Ernest Wooten's tenancy are mutual, and the accounts pertaining to supplies purchased for the production of said crops are mutual."
By final amendment paragraph D was added, alleging in effect that complainant furnished respondent one truck and one tractor and equipment during the year 1951 to be used and which was used on the farm; that respondent has failed and refused to pay complainant for said truck, tractor and equipment.
Bill, as amended, for accounting and discovery brought by appellant against appellee. (The pertinent allegations will appear in the report of the case.) The trial court sustained the demurrer to the bill and bill as amended and the complainant brings this appeal.
The bill and its amendments show that a purely legal claim is sought to be enforced in this equity suit. But before complainant is entitled to an accounting or discovery, certain facts must appear.
With respect to accounting:
"Equity will not take jurisdiction for an accounting on a legal claim, unless the accounts are mutual or so complicated and difficult to adjust that relief at law is not adequate or fiduciary relations exist between the parties. Doss v. Williams, 249 Ala. 565, 32 So.2d 221; Electrolux Corporation v. Iverson, 250 Ala. 24, 32 So.2d 891." Ex parte Adams Construction Co., 251 Ala. 347, 349(2), 37 So.2d 497, 498.
See also Segrest v. Brown, 263 Ala. 342, 82 So.2d 432. Though mutual accounts are alleged by way of conclusion, the bill fails to show a status of mutual accounts existing between the complainant and respondent, nor are any facts alleged to show that the accounts are so complicated and difficult to adjust that a law court could not easily ascertain and settle the accounts, nor are any fiduciary relations shown to exist between the parties. Therefore, the appellant was not entitled to an accounting in equity.
As regards discovery, there are various statements of the principle. One is, complainant must aver and prove not only the materiality of the matter of which he would have discovery, but also that it is indispensable to establishment of his cause or defense and that he is unable otherwise to make this proof. Metcalf v. Clemmons-Powers Co., 200 Ala. 243(3), 76 So. 9.
Another statement of the principle is found in Callahan v. Auburn Production Credit Ass'n, epitomized in the first headnote, to wit:
"The equity of a bill could not be sustained on ground that it sought discovery, in absence of averments showing confidential relations between complainant and defendant, or that facts essential to support of complainant's claim were peculiarly within defendant's knowledge." 240 Ala. 104, 197 So. 347, 129 A.L.R. 893.
See also Employers Insurance Co. of Alabama v. Rhodes, 240 Ala. 226, 198 So. 616.
The facts alleged in the bill do not bring the complainant's case within the rule that equity will lend its aid in support of complainant's purely legal claim. It clearly appears that special relief by way of discovery would be obtainable by the statutory system at law devised for that purpose. Ex parte Adams Construction Co., supra; Pate v. Bruner, 243 Ala. 648, 11 So.2d 356. Nor are any of the other special allegations made to bring the case within the equitable principles of discovery.
We entertain the view, therefore, that the trial court ruled correctly in sustaining the demurrer.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur.
On Rehearing
Appellant argues on rehearing that the bill has equity as one to enforce a lien on farm machinery, based upon Code, Tit. 31, § 15, creating such lien, and Tit. 33, § 1, which provides for enforcement of liens in equity. But there are no allegations sufficient to show the existence of the lien. Whether it exists or not would depend upon facts developed on a discovery. If the bill has no equity as one for a discovery in general, it would have no equity as one for discovery to establish a lien.
Application for rehearing overruled.
LAWSON, GOODWYN and MERRILL, JJ., concur.