Cleveland, et al. v. Insurance Co. of North America

Cleveland, et al. v. Insurance Co. of North America. Bin to Prevent Multiylicity of Suits. (Decided May 9, 1907. 44 South. 37.) 1. Injunction: Restraining Action; Multiplicity of Suits. — A bill will lie at the instance of insurer to enjoin actions at law and to prevent a multiplicity of suits where the insured has begun action on the policy and two of insured’s creditors have begun separate actions and issued garnishments against insurer to enforce .same. 2-, Appeal; Interlocutory. Decree. — In the absence of a final decree this court will not review on appeal the action of the court in sustaining exceptions to an answer, the same not coming within the purview of section 427, Code 1890. Appeal from Gadsden City Court. Heard before Hon. John H. Disque. Bill by the Insurance Company of North America against AY. J. Cleveland and others. From a decree overruling demurrers to the bill and a motion to dismiss, defendants appeal. Affirmed. AA. J. Cleveland had a policy of insurance on his stock of goods and store, and during the life of said policy his store and contents burned. The First National Bank of Gadsden and S. Schiffman & Co. brought suit against Cleveland for a debt due them by Cleveland, and had process of garnishment issued to the insurance company, and AY. J. Cleveland brought his suit against the insurance company to recover the face of the policy. The bill in this case sets up these facts, and complaining that it Avas harrassecl and vexed by a multiplicity of suits, and asks for an injunctilon restraining these various suits and that, the court Avill take charge of the matter and adjust all the equities of each party. The policy is made an exhibbit to tbe bill. The bill makes W. J. Cleveland, S. Schiffman & Co., and the First National Bank parties respondent, and demurrers were interposed to tbe bill, and a motion was made to dismiss tbe bill for want of equity, all of which was overruled. Boykin & Brindley and M. C. Silvey, for appellant. —Multitude is more than three persons and three persons will not constitute a multitude. — Pike v. Witt, 104 Mass. 497; 20 A. & E. Ency. of law, p. 1080. There was no equity in tbe bill on tbe ground that such bill will relieve tbe complainant from vexatious litigation and from being harrassed by a multiplicity of suits. — Turner, et al. v. Mobile, 135 Ala. 72; Attalla M. & F. Go. v. Winchester, 104 Ala. 192; Tribbitts v. III. G. R. R. Go., 19 L. R. A. 660. Tbe complainant has an adequate remedy at law. — Oraioford v. Glute, 7 Ala. 157; Crawford v. Slade, 9 Ala. 887; 12 Cyc. 1140. By application to tbe judge of tbe city court complainant might have secured relief against successive suits or garnishments upon tbe same funds. — Authorities supra; Warren v. Matthews, 96 Ala. 183. Claims must not be entirely distinct, unconnected and independent. — Jones v. Hardie, 127 Ala. 221. For further authority that tbe bill was without equity we cite tbe following. — Florence Gas. Go. v. Handy, 101 Ala. 15; Hall v. Henderson, 114 Ala. 325; Falk v. Galloicay, 123 Ala. 325; Simmons v. Gain, 138 Ala. 221. Dortch, Martin & Allen, for appellee. As conclusive of tbe matters presented on this appeal we cite the case of Turner, et al. v. City of Mobile, 135 Ala. 72, Tribbetts v. III. G. R. R. Go., 19 L. R. A. 660. [MAJORITY — ANDERSON, J.] ANDERSON, J. Tbe jurisdiction of the court of equity, will be exercised “in suits by a single” party against a number of persons to restrain tbe prosecution of simultaneous actions at law brought gainst him by each defendant, and to procure a decision of the whole in one proceeding, where all of the actions depend upon the same lam and facts.” — 1 Pomeroy, § 274. All the suits set up in the bill in the case at bar are by different parties against this complainant, but each seeks to recover of and fix its liability under the same policy of instifance. A judgment, if in favor of the complainant, in no ofie of them would operate as a bar to the other suits, notwithstanding the law and facts would be the same in each of them. There being a community of interest in the subject-matter, and the sole question in each case being the complainant’s liability vel non and the fixation of the amount in case of liability, there can be but one tine assessment of the actual amount of the loss, and yet each jury might put it at a different sum. — Morgan v. Morgan, 3 Stew. (Ala.) 383, 21 Am. Dec. 638; Tisdale v. Insurance Co., 36 South. 568, 84 Miss. 709; Hightower v. M. & K. R. R. (Miss.) 36 South. 82; Virginia Chemical Co. v. Ins. Co., 113 Fed. 1, 51 C. C. A. 21. The case of Turner v. Mobile, 135 Ala. 73, 33 South. 132, is not in conflict with what we here hold. There the suits did not involve the same subject-matter, as each suit was for a separate and distinct parcel of land, and there Avas no community of interest or title in all parties to any parcel of the land involved in any one suit. Here the sole question involved in each siut is the liability of the complainant- to Cleveland under a certain policy of insurance. The judge of the city court properly overruled the motion to dismiss the bill for Avant of equity, as well as the demurrers to the amended bill. The appeal not being from a final decree, and the action of the judge in sustaining exceptions to the ansAver not being Avithin the class provided for by section 427 of the Code of 1896, we cannot reA'iew the action of the court below in this respect, upon this appeal. — Hood v. Southern Ry., 133 Ala. 374, 31 South. 937; Richardson v. First National Bank, 119 Ala. 287, 24 South. 54. The decree of the city court is affirmed. Affirmed. Tyson, C. J., and Dowdell and McClellan, JJ., concur.