ANASTASOPOULOS et al. v. STEGER & SONS PIANO MFG. CO. et al., 16 F.2d 32

ANDERSON, Circuit Judge. Appellants complain of the dismissal of their second amended bill. The original bill contained 39 paragraphs, is set out in the printed record, and occupies 25 pages thereof.

A motion to dismiss it was filed upon the ground, among others, that “said bill is vague, indefinite, and uncertain, and contains many arguments and many conclusions, and does not allege facts, by reason of which said bill violates clause 3 of equity rule No. 25.” The court sustained this motion to dismiss, holding that the bill did not comply with equity rule No. 25, and in its memorandum said: “Defendants are not required to answer bills which are diffuse and filled with epithets and statements of legal conclusions. The bill must contain a short simple statement of the ultimate facts.

This bill does not contain such statement, and it must be radically re-framed before defendants can be required to answer it. * * * The motions to dismiss are sustained, with leave to amend within 30 days.” Just before the 30 days expired, appellants filed an amended bill. This contained 41 paragraphs, is set out in the printed record, and occupies 32 pages thereof.

The defendants moved to dismiss this for failure to comply with rule 25, and for the reason that the amended bill is “confused, indefinite, uncertain, profuse, prolix, abounds in arguments and conclusions, and is replete with recitative and argumentative phraseology instead of allegations of fact,” etc. The motions to dismiss the amended bill were sustained, “with leave to reframe same within 30 days to comply with equity rules.” Shortly before this time expired, appellants filed their second amended bill. This contains 42 paragraphs, and occupies 35 pages of the printed record.

Defendants moved to dismiss for the same reasons addressed to the original bill and the first amended bill. The court sustained the motions, “and, the plaintiffs in open court having elected to stand by their second amended complaint,” it was dismissed for want of equity. . We cannot undertake to make a synopsis of any one of these bills. Appellants in their brief, in an attempt to set forth what they call the substance of the second- amended bill, take 37 closely printed pages to do it.

The original bill did not comply with equity rule 25, was prolix, indefinite, uncertain, filled with repetitions, redundancies, and conclusions, and the court properly directed it to be “radically reframed.” The first'amended bill, with some rearrangement of its averments and paragraphs, is a copy of the original bill, with additions to it, and the second amended bill is a like copy of the first amended bill, with still further additions to it. The first amended bill did not comply with the rule or with the order of the court, nor does the second bill do any better in this regard.

Each amended bill offends against the rule and the order of the court more than its predecessor. The propriety of dismissing the second amended bill under the circumstances is not open to question. But it is insisted that the bill should not have been dismissed, if any material part of it is good; that is to say, in this case, the court should have hunted through the mass of repetitions, redundancies and conclusions in the bill, in an effort to dig out of it a stated cause of action.

Appellants in urging this suggest two theories for upholding the bill: That it is good as a creditor’s bill; and that it is sufficient to charge defendants as trustees ex maleficio. Conceding the general rule in creditors’ bills, as to judgment, execution, and return nulla bona, they maintain that the case falls within one of the recognized exceptions; that is, where á judgment and execution would be of no avail because of the insolvency of the defendants.

The defendants are all charged with doing the things that are supposed to give rise to a cause of action, and there is no averment as to the insolvency of any but one. So far as the averments in the bill go, all the other defendants are solvent, and a judgment at law would furnish a complete remedy. The bill is not good as a creditors’ bill. Nor is it sufficient to hold defendants as trustees ex maleficio. The basis of this action is fraud. The bill, to be good on this theory, must, among other things, charge that representations were made as to material facts and that such representations were false.

Many representations of fact are charged, but only one of them is alleged to be false; that is, that the defendants did not “have an honest intention and purpose” to do certain things which are charged in a roundabout and indefinite way as having been inducements to plaintiffs to part with their money. Such a statement of an intention, even though false, cannot be made the basis of an action for fraud. The bill is insufficient upon either theory urged, and the decree is affirmed.