The Birmingham age-herald., 1903-02-10
Opinions Rendered
 By Supreme Court


 Such Bill.-The fact that a party seeking by bill in equity to subject the unpaid subscriptions of stock of a judgment debtor corporation to the satisfaction of said judgment, is the assignee of the judgment which 1t Is sought to have paid does not impede his legal remedy by garnishment, so as to give him a standing In court of equity to maintain such suit; since, under the provisions of the statute, where suits are brought in the name of the person having the legal right for the use of another, the bene- ficiary is considered the sole party on the record (code paragraph 29), and such as
 signee. could, therefore, obtain the relief In a court of law
 To- Same; When Bill Not Multifarious.- A bill filed by judgment creditor of corporation against various subscribers to the stock of a corporation, to subject their unpaid subscriptions to the satis faction of his judgment, Is not multi farious or objectionable for misjoinder of parties respondent, when 1t is shown by the bill that the rights sought to be as- serted by the complainant are the same against each of the respondents, and the obligation, If any, of each Is the same; and this Is true, notwithstanding the in- | terest and obligations of the respondents as among themselves are entirely inde- pendent and distinct
 [ H. Equity Pleading; When Submission | of Cause Includes Demurrer.-On the l final submission of a cause on the plead
 ngs and proof 1t is not necessary or even proper that the demurrer should be set down in the note of testimony, and where there is a written submission or the cause, which clearly embraces all questions and issues in the cause. both of law and fact, as well as on the pleadings as on the evidence, such submission in- cludes submission on the demurrers. 12 Bill by Judgment Creditor to Sub ject Unpaid Subscriptions to Capital Stock; When Cannot Be Maintained.-On bill filed by a judgment creditor of corporation against certain stockholders therein to subject unpaid subscriptions to the capital stock to the satisfaction of judgment, where it appears that the pres ident of the corporation, pretending he was authorized thereunto, but not hay ing such authority, in order to induce the payment by the respondents of the over due stock subscription notes. offered to purchase the stock of the subscribers who would pay their notes, and some of the l defendants paid their notes and their stock was purchased and paid for with | the assets of the corporation, the com | plainant Is not entitled to the relief | prayed for, but could maintain an action ] at law to recover the assets of the cor poration so unlawfully disposed of; the | corporation and it's creditors having, by the transaction complained of, received | the full benefit of the amount so paid
 and havisg suffered injury only by the | illegal and unauthorized diversion of the 1 corporate assets m Tc. rent of the stock 1 13. Same; Same-The mere fact that the | subscribers to the capital stock of a cor poration intending to defraud the cor l poration and hinder its creditors, sell | their stock to nonresident, not be- 1 lieving and having no reasons to believe i that the buyer was able to perfrom his promise to pay the subscription notes does not confer upon a judgment credi- tor of said corporation the right to main tain bill in equity to compel the origin al subscribers to the stock so sold, to pay their subscription notes; such Judg- ment creditor having obtained an ade-
 auate remedy at law by garnishment | proceedings.
 | IA Bill by Judgment Creditor to Sub- l feet Unpaid Subscriptions to Satisfaction | of Judgment; Res Adjudicata Garnish- ment.-Where a judgment creditor of 8 | corporation institutes garnishment pro- ceedings to subject alleged unpaid sub scriptions to the capital stock of cor poration 10 the satisfaction of his Judg- ment and the garnishees answer which answer Is contested and Judgment is thereafter rendered discharging the garnishees, in subsequent suit in equity by the same judgment creditor. seeking to subject to the satisfaction of his judg- ment the unpaid subscriptions to the capital stock Of said corporation alleged to be due from those persons who were garnishees in the garnishment suit. the proceedings and judgment In the garn- ishment suit are res adjudicata as to complainant's right to recover in a suit In equity. and a plea in the subsequent suit in equity setting up the adjudication as bar to the relief prayed for presents a sufficient defense.
 15. Equity Pleading; When Cause not at Issue; Suppression of Deposition.-A party defendant to a bill in equity died before answering. and before the rendi- ton of a decree pro confesso against him. An order of revivor was entered against his administrator against whom a decree pro confesso was subsequently, rendered. This decree pro confesso. was set aside and he was allowed to answer. Dispositions were taken in the cause after the administrator had been made party and before the decree pro confesso, and also after the decree had been set aside. and before he answered. Held: That these dispositions were taken before the cause was at issue. and under Chancery rule 49 Code. D. 121D, providing that testimony can not be taken before the cause Is at issue by sufficient answer or docrec pro confcsso, should have been suppressed
 1G. Equity Practice: When Necessary to Make Proof of Material Facts.-Where a bill in equity is filed against several re- spondents. whose liabilities are separate and distinct as among themselves. ma terial facts denied by any of the respon-