Opinion
7 Div. 497.
April 14, 1938.
Appeal from Circuit Court, Calhoun County; Lamar Field, Judge.
Jas. F. Matthews, of Anniston, for appellant.
When a cause of action stated in a bill is prima facie within the bar of the statute of limitations or offensive to the rules which courts adopt for discouragement of stale demands, objection on that ground may be taken by demurrer. Lovelace v. Hutchinson, 106 Ala. 417, 17 So. 623; Wood v. Master Schools, 221 Ala. 645, 130 So. 178; Hinton v. Gilbert, 221 Ala. 309, 128 So. 604, 70 A.L.R. 1192; Fowler v. Ala. I. S. Co., 164 Ala. 414, 51 So. 393. Directors and officers of a corporation are not accountable or liable for alleged misappropriations or wrongful acts for which the corporation was entitled to relief more than six years next before the filing of the bill. Remedy for such wrongs is defeated by the doctrine of stale demand, or laches applied by analogy to the statute of limitations. Montgomery Light Co. v. Lahey, 121 Ala. 131, 25 So. 1006. Corporation's bill against officer for relief against an alleged wrong must show or aver that in committing the alleged wrong the officer was acting without the consent, approval, or direction of the corporation, itself, directors or stockholders. Adams v. Ala. L. S. Co., 221 Ala. 10, 127 So. 544.
Knox, Acker, Sterne Liles, of Anniston, and Martin, Turner McWhorter, of Birmingham, for appellee.
When there are mutual accounts between persons not merchants, time must be computed from date of last item unless account is liquidated and balance struck. Code, § 8963; Bradford v. Spyker's Adm'r, 32 Ala. 134; Prestridge v. Patrick Irwin Co., 46 Ala. 653; Cannon v. Copeland, 43 Ala. 201; Moreland v. Dickerson Baker Lbr. Co., 12 Ala. App. 576, 68 So. 526; Causler v. Wharton, 62 Ala. 358; First Nat. Bank v. Lowery, 234 Ala. 56, 173 So. 382. The statute of limitations is not available to an officer of a corporation as defense to bill for accounting by corporation, when such officer has himself been responsible for lack of earlier action on part of the corporation. Coxe v. Huntsville G. L. Co., 106 Ala. 373, 17 So. 626; Holcomb v. Forsyth, 216 Ala. 486, 113 So. 516; Peerson v. Gray, 184 Ala. 312, 63 So. 467; Mobile Land Imp. Co. v. Gass, 142 Ala. 520, 39 So. 229; Decatur M. L. Co. v. Palm, 113 Ala. 531, 21 So. 315, 59 Am.St.Rep. 140. The defense of laches is not available to a director of a corporation when called to account by the corporation for his own wrongdoing. Montgomery L. Co. v. Lahey, 121 Ala. 131, 25 So. 1006; Adams v. Ala. L. S. Co., 221 Ala. 10, 127 So. 544.
It is unquestionably the rule in this state that where a bill in equity, as distinguished from a complaint at law, discloses on its face that the relief sought is barred by the statutes of limitations or laches, the same is subject to demurrer. But the question here is, Does the present bill disclose limitations or laches as would cut off the complainant's right to the relief sought?
The bill charges that the respondent, Greenleaf, was continuously president and general manager of the corporation for a number of years up to April, 1934, just two years before the filing of the bill, with the exception of a few months when the corporation was in the hands of a receiver, the respondent being the receiver. The bill also charges that the said Greenleaf, as the president of the corporation, had complete control and management of same and dominated and influenced the directors and was, in effect, the alter ego of the corporation — that the said Greenleaf was guilty of malfeasance while acting as the general manager and trustee of the corporation, appropriated or caused to be appropriated to his personal use funds of the corporation, and seeks an accounting of same.
We think the averments of the bill bring it within the influence of Coxe et al. v. Huntsville Gas Light Co., 106 Ala. 373, 17 So. 626; Mobile Land Improvement Co. v. Gass, 142 Ala. 520, 39 So. 229; Montgomery Light Co. et al. v. Lahey et al., 121 Ala. 131, 25 So. 1006; Adams et al. v. Alabama Lime Stone Corporation, 221 Ala. 10, 127 So. 544; Williams v. Reilly, 41 N.J. Eq. 137, 3 A. 692.
True, the bill does not expressly negative knowledge of the misconduct at the time of each and all of the infractions, but the facts averred show that its means of acquiring the knowledge were through the respondent who is charged with the wrongs and derelictions. In other words, limitations or laches could not be charged to this complainant so long as the respondent's relation with it existed and which was not terminated until 1934.
There is, in the last part of the opinion, in Montgomery Light Co. et al. v. Lahey et al., supra, an expression that indicates that the items were separable, those of over six years would be barred, but those less than six years old would not be barred. This, however, was mere dictum and arguendo, a mere concession, that if some of the items might be barred by six years, there were others within six years which would save the bill. It will be noted that the case was reversed only as to demurrers 7 and 8 which did not deal with limitations or laches.
The trial court did not err in overruling the demurrer to the bill of complaint, and the decree of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.