Opinion
8 Div. 796.
June 10, 1926.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
J. A. Lusk, of Guntersville, for appellant.
The bill has equity as a bill of peace. 1 Pomeroy's Eq. 360, 361; 2 Story's Eq. 190, 191; Ætna Ins. Co. v. Hann, 196 Ala. 234, 72 So. 48; Hamilton v. Ala. Power Co., 195 Ala. 438, 70 So. 737; Middleton v. Howell, 127 Miss. 880, 90 So. 725.
Street, Bradford Street, of Guntersville, for appellees.
The bill is without equity. Hamilton v. Ala. Power Co., 195 Ala. 438, 70 So. 737; Security Ass'n v. Weems, 69 Ala. 584; Guilford v. Reeves, 103 Ala. 301, 15 So. 661; Roanoke Guano Co. v. Saunders, 173 Ala. 359, 56 So. 198, 35 L.R.A. (N.S.) 491.
Whether or not the bill of complaint comes within the rule as to community of interest as to parties and subject-matter, as laid down in the case of Hamilton v. Alabama Power Co., 195 Ala. 444, 70 So. 737, and cases there cited, and is sufficient as a bill of peace, strictly speaking, matters not, for the reason that it presents an independent equity. By it the complainant, as the assignee or successor of Mason, seeks an accounting and settlement of the partnership between said Mason and Carpenter; and the bill is also, in the alternative, in the nature of a bill of interpleader in the event it is determined that complainant is due any sum to said Carpenter, which said sum is claimed by numerous creditors of said Carpenter who have garnished the complainant and some of whom are claiming priority over the others. Baldwin v. Constantine, 214 Ala. 446, 108 So. 345, and authorities there cited.
The bill was not subject to the respondents' demurrer, and the decree of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.