This is an appeal from a decree of the circuit court of Montgomery County, in equity, overruling the demurrer interposed by appellant to the bill, which the reporter will set out in the report of the case.
The bill presents an unusual situation and the research which the writer has made has pointed up the wisdom of our rule to the effect that on an appeal from a decree overruling a demurrer to a bill in equity we treat only the grounds of demurrer which are adequately argued in brief, and we wish to make it clear that in this opinion we have considered only the grounds of demurrer discussed in appellant's brief and the argument made in support of those grounds.
The general rule is that all partners must join as parties plaintiff in an action to enforce a claim in favor of a partnership and cannot sue in their partnership name. Moore & McGee v. Burns & Company, 60 Ala. 269; Simmons v. Titche Bros., 102 Ala. 317, 14 So. 786; Lister v. Vowell, 122 Ala. 264, 25 So. 564; Conn v. Sellers, 198 Ala. 606, 73 So. 961; Crook v. Rainer Hardware Co., 210 Ala. 178, 97 So. 635; 68 C.J.S., Partnership, § 208, p. 680. In Tallapoosa County Bank v. Salmon, 12 Ala.App. 589, 591, 68 So. 542, 543, it was said: "If the indebtedness was due R. V. Salmon's Son, a partnership although the plaintiff was a member of the firm, he could not maintain an action in his individual name to recover on it." And we have held that one partner cannot sue alone for his share in a firm claim. Fred Gray Cotton & Gin Co. v. Smith, 214 Ala. 606, 108 So. 532; Hood v. Warren, 205 Ala. 332, 87 So. 524. By § 141, Title 7, Code 1940, two or more persons, associated together as partners, may be sued at law for the obligation of all. But the provisions of § 141, Title 7, supra, do not apply to plaintiffs so associated. Moore & McGee v. Burns & Company, supra.
It has been held that where one partner will not join in a suit to recover partnership obligations that the other partner or partners may name him as co-plaintiff by indemnifying him against costs. Harris v. Swanson & Bro., 62 Ala. 299. See Bolton v. Cuthbert, 132 Ala. 403, 31 So. 358.
In the bill presently before us, it is apparent that Beckham has proceeded on the theory that he cannot sue in the partnership name nor can he sue alone, so he has joined as co-complainant his partner, Simpson, whose address he does not know, and he has offered to indemnify Simpson against any costs he may incur in the cause. Although there is no averment that Simpson has refused to join with Beckham in the prosecution of the suit, we think the fact that Simpson's "whereabouts and residence" is unknown to Beckham makes the holding in Harris v. Swanson & Bro., supra, applicable here.
While the prayer of the bill is subject to the construction that Beckham prays for recovery for himself alone, we are of the opinion that when the prayer is considered in connection with the caption and the stating part of the bill, it is manifest
The argument made in brief of appellant in support of the insistence that the trial court erred in overruling grounds of demurrer which took the point that the equity court was without jurisdiction because the averments of the bill show an adequate remedy at law is in material respects as follows:
As counsel for appellant states, we did hold in Alexander v. Jones, 90 Ala. 474, 7 So. 903, that the provisions of law now codified as § 141, Title 7, Code 1940, operate to change the common law rule which was in substance that an action at law was not maintainable between partnerships with a member in common.
However, the opinion in Alexander v. Jones, supra, recognizes the fact that equity originally had jurisdiction of such controversies. And the authorities agree that equity may take cognizance of these cases in a suit between the parties. Haven v. Wakefield, 39 Ill. 509; Schnebly v. Culter, 22 Ill.App. 87; Crosby v. Timolat, 50 Minn. 171, 52 N.W. 526; Burrows v. Leech, 116 Mich. 32, 74 N.W. 296; Noyes v. Ostrom, 113 Minn. 111, 129 N.W. 142; Chapman v. Evans & Gibbons, 44 Miss. 113. The applicable rules are stated in §§ 922 and 923, Story's Equity Jurisprudence, 14th Ed., Vol. 2, p. 299. The author in § 922 says:
In § 923 the author further states:
So while § 141, Title 7, supra, may have afforded the necessary relief in a court of law, yet it is not the exclusive mode of relief, but is concurrent and cumulative with that of equity. Waldron, Isley & Co. v. Simmons, 28 Ala. 629. No negative, prohibitory or restrictive words are
We hold, therefore, that the trial court did not err in overruling the grounds of demurrer taking the point that the complaint shows an adequate remedy at law.
The remaining insistence of appellant is that the trial court erred in overruling the grounds of demurrer taking the point that "the claim is barred by laches."
The rule of our decisions in respect to laches is stated in the case of Mullen v. First Nat. Bank, 226 Ala. 305, 307, 146 So. 802, 804, where it was observed:
It is not argued in brief of appellant that the instant bill was not filed within the limits allowed by law; that is, it is not claimed that the statute of limitations, by analogy, has any application to the matter of instant concern.
Appellant's real contention is that the bill was not filed until approximately five years after the time which he construes the bill to show that the indebtedness was incurred and until after the disappearance of Simpson, who had knowledge of the affairs of both partnerships. While the bill does show that Beckham did not know the "whereabouts and residence" of Simpson at the time the bill was filed, we do not think such an averment can be said to show that Simpson's "whereabouts" is not known to the respondent or that Simpson will not be available to give testimony on the trial of the cause. We hold, therefore, that the bill does not show laches on its face and that the grounds of demurrer raising that point were overruled without error.
The decree of the trial court is affirmed.
LIVINGSTON, C. J., and GOODWYN and MERRILL, JJ., concur.