Whitaker v. DeGraffenreid

6 Ala. 303

• Court: Supreme Court of Alabama
• Decided: January 15, 1844
• Status: Published

Opinion

ORMOND, J.

There is clearly a misjoinder of complainants in this case, which is fatal on general demurrer. [Bowie v. Minter, 2 Ala. Rep. 406.] The three persons who were sureties for Whitaker, have no interest in the matter, in controversy. — ■ Until they pay the debt of their principal, they can maintain no' action in their own names, based upon their liability to pay the' debt, unless it be a bill in chancery to compel the creditor to sue. They were, therefore, improperly joined in a suit with their principal, unless it was shown that the promise of DeGraffenreid, was made to them jointly with their principal. The bill is also bad for uncertainty; it does not show whether the undertaking of De-Graffenreid was made to Whitaker or McCargo. If to the former, then the latter has not such a legal interest in it as would justify his being made a party to the suit; and if to the latter, then for the same reason, the former was improperly joined. If an exception could be made in a case where the fact was only known to the defendant, and the knowledge of it was fraudulently withheld by him, this is not such a case as we must presume the fact to be known to the persons interested.

Certainty, in the allegations of the bill, is essential in equity pleadings. In this case, the uncertainty is so great that it is impossible to say, from the allegations of the bill, who are the necessary parties to the suit. On this head, see the authorities cob lected by Mr Justice Story, in his Equity Pleading, 212.

Let the decree of the chancellor be affirmed.