We are cited to our cases of Clay County Abstract Co. v. McKay, 226 Ala. 394, 147 So. 407; Minor v. Thomasson, 236 Ala. 247,182 So. 16, and Woco Pep Co. v. Montgomery, 227 Ala. 261,149 So. 692, as being in conflict with what we have here written as to the use of the expression (or symbol) "and/or", when it appears in the bill or quoted in the opinion.
We do not think they conflict. In the two first above-named cases, demurrer on other grounds was held to be well taken, and on the facts of those cases, it was also said that this phrase rendered the bill prolix, equivocal and uncertain in violation of the statute. Code, section 6525. And in the latter case, it is said that this is an "interloper," and has no proper place in the parlance of pleading, but it was not held to be subject to demurrer on that ground. In the last edition of Webster's Dictionary, it is set out as meaning either, "and" or "or". *Page 406
We have knowledge of the fact that it has come into use in our legislative enactments, and in commercial bonds, deeds of trust, insurance policies and other contracts of importance. We do not think it should be condemned when used in pleading to the extent of holding that its use renders the pleading in all instances subject to demurrer. But whether so or not depends upon whether, when considered in the light of its context and meaning, as defined above, and as commonly understood, it creates a defective or ambiguous status. It is an alternative statement, and the pleading should be weighed in that light when it is used to determine whether each alternative is properly set up. Henderson v. Nolting First Mortgage Corp.,184 Ga. 724, 193 S.E. 347, 114 A.L.R. 1022; 3 Corpus Juris Secundum, and, 1069.
In this case the allegation is that the hidden or concealed property is "unknown to complainant and/or the personal representative of the said W. C. McCarty, deceased, so that same cannot become a part of said W. C. McCarty, deceased, estate." Complainant was a judgment creditor of McCarty, and sought a discovery of assets. In the connection in which it is used here, we think the clause means to allege that neither of such parties had the information referred to.
We still think that the aspect of the bill thus expressed is not subject to demurrer on that ground.
It is also insisted that a bill for discovery cannot be sustained under section 7343, Code, after the death of the debtor. The case of LeGrand v. McKenzie, 110 Ala. 493,20 So. 131, is cited to support this contention. That was where a corporation was the debtor and certain officers of the corporation were made parties because they had personal knowledge of the matters sought to be discovered. Pending the suit one of them died. It was held that it could not be revived against his personal representative. This was based on the fact that no effort was made to subject the property, which he claimed or possessed, to the debt of the corporation; and that his mere knowledge died with him. The whole theory supports the view that when the debtor dies a bill of discovery under this statute is available with the personal representative a party.
It is also insisted that a bill of discovery of assets will not lie by a creditor where one of the parties of whom discovery is sought, is not a debtor, citing Terrell v. Southern Ry. Co., 164 Ala. 423, 51 So. 254, 20 Ann.Cas. 901. That was a bill for the discovery of evidence not of assets as here. A theory is there mentioned that such a bill of discovery solely in aid of a defense to an action at law will not lie against one not a party to the record at law; but it there sustained a bill where for the reasons named one of the parties was not a party at law.
The theory of this bill is not for discovery of evidence either with or without relief as such right is recognized in equity, and it is not to be measured by the rules which pertain to such a bill. But it is one by a creditor for the discovery of assets under a Code section, which has existed in Alabama through five codes as indicated in section 7343, Code of 1923.
We cited three of our cases on the subject. Many more could be cited, and are referred to in them. In one of them, Hackney v. Yarbrough, 233 Ala. 365, 172 So. 107, it was distinctly held that others named and made parties were properly brought in and required to make disclosure, though they were not debtors to the complainant, nor alleged to be in privity with the debtor.
It must be remembered that this is a creditors' suit, and so limited. And as such the authorities generally support our case, supra, that others than the debtor may be made parties in the same suit to disclose concealed assets. 15 Corpus Juris 1444. The personal representative and heirs of the debtor are here made parties, as were also the personal representatives and heirs of the deceased grantee in a certain deed sought to be vacated under the first aspect of this bill. They are those who are objecting that they cannot be made to disclose concealed assets of the debtor, because the statute authorizing such discovery is limited to the debtor. That statute certainly includes all those who are also in privity with him, as well as those otherwise properly made parties, and all other persons who. are not so related but are alleged to have property subject to said debt, which they conceal and hide out, which is unknown to complainant.
The application for a rehearing is overruled.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur. *Page 407