Hall v. Alabama Terminal & Improvement Co.

104 Ala. 577

• Court: Supreme Court of Alabama
• Decided: November 15, 1894
• Status: Published

Opinion

COLEMAN, J.

This appeal is prosecuted from the decree of the chancery court sustaining the sufficiency of a plea filed by appellees to the bill of appellant. There is but one question argued by the counsel for the appellee, and but one principle involved in this appeal, and that is whether a pending creditors’ bill, filed by the complainant for himself, and all other creditors who may see proper to come in and make themselves parties, before a decree has been rendered in the ca,use,canbe pleaded.in bar to another bill, filed by a creditor of the same debtor, and who has not made himself a party to the other proceeding. No case has been cited by counsel for appellee, in support of the contention, and we presume none can be found. In 2 Dan. Chan. Pr., §§ 1615, 1616, it is stated, that' “There is no instance, however, . (rich a creditor at law has ever been stopped, unless there was a decree giving him an absolute and unconditional right to come in and prove his debt at once.” In 1 Story’s Eq. Jurisprudence, § 549, the rule is thus stated : “As soon as the decree to account is made in such a suit, * * * and not before, the executor is entitled to an injunction,” &c. Italics are ours. See also 4 Amer. & Eng. Encyc.of Law, 580.

We deemit unnecessary to accumulate authorities.

The court erred in holding that the plea was sufficient.

Reversed and remanded.

Brigkell, C. J., not sitting.