Mayfield, et al. v. Schoolar

Mayfield, et al. v. Schoolar. Bill for Dissolution of Partnership and Other Purposes. (Decided Feb. 7, 1907. 43 So. Rep. 12.) Equity; Pleading; Defeats; Motion to Dismiss; Demurrer. — Where some of the averments of the bill give it equity, although the bill may be dofetcive in other averments, the defects cannot .be reached by motion to dismiss for want of equity, but must be pointed out by demurrer. ' Appeal from Jefferson Chancery Court. Heard before Hon. Alfred H. Benners. Bill by Kate Bell Schoolar against J. C. Mayfield and others. Prom a decree overruling defendants’ motion to dismiss the bill, they appeal. Affirmed. Kerr & Haley, for appellant. — Counsel discuss assignments of error but cite no authority. Z. T. Rudolph, for appellee. — No brief came to the reporter. [MAJORITY — DOWDELL, J. —] DOWDELL, J. — The appeal in this case is prosecuted from a decree of the chancellor overruling a motion to dismiss the bill for want of equity. One of the objects of the bill is the dissolution of an alleged partnership, of which the complainant was a member, and for an accounting. The averments in this respect unquestionably give equity to the bill. It may be that the bill is defective in some of the averments, but not such as may be reached by a motion to dismiss for want of equity in the bill. The proper practice in such case is to point out the defect, by demurrer. The decree overruling the motion to dismiss is free from error. Affirmed. Tyson, C. J., and Anderson and McClellan, JJ., concur.