Dubberly v. Black's Adm'r

38 Ala. 193 | Ala. | 1861

A. J. WALKER, C. J.

In this- case, a surety on an injunction bond, executed in 1845, proceeds by notice against his principal, to obtain a judgment for money paid by him as such surety. It is- objected to the notice, that it fails to show that an injunction ever issued. The amended complaint expressly avers, that the plaintiffs principal obtained from a circuit judge anfinj unction. We think this averment involves the assertion that an injunction issued. — Ex parte Greene v. Graham, 29 Ala. 52; Const, of Ala., article 5, § 8. The same subject "was presented in a charge requested. The court charged-the jury, upon the defendant’s motion, that the plaintiff.’could not recover, unless it was shown • that an inj-unctiomactually issued. This charge was certainly correct, for there can be no liability upon an injunc- - tion bond,, unless»the injunction issues. — Shorter v. Mims, 18 Ala. 655. And if the surety paid, the judgment, when there had been .no .process .enjoining it, ,he did it in his own wrong.

.-.But, while., the .court, gave the ..correct charge above stated, it added, that the recitals in the injunction bond were evidence of the.issue.of the..injunction. In this we think the court erred. The bond does not recite that an dnjunctian had .issued, .but simply that .the .complainant in í the chancery suit <had obtained an order for an injunction. 1 The obtaining .an order for an injunction from .a proper . authority,;and the obtaining an injunction, are very differ- •- ent things. ."'The rule of practicewhich .was in force..at. t that time, (Clay’s Digest, 615, § 27) required, that the ¡...bond should be given in such sum, and with such condition as the chancellor or judge, might direct,.before‘the injunc5 tion issued. ' Under, this rule, the practice which • was ; adopted, and which was, obviously necessary, was for the jpSge or chancellor,to order an injunction to issue, upon -, the execution. of .a bond, with prescribed condition and penalty, and tbe injunction was issued after the giving of the bond. If the injunction bad issued .before ¡the bond • was given, the rule would have been violated. It is, obvi- . ons that the recital of the bond in this case shows nothing i more than that it was given, in conformity to- the rule-.of ppractice, after thor order for the injunction.

^[2-3.] The objection taken by demurrer,,that thispr.ov seeding could not be instituted in Mason county, is untenai:Me. Section 2650 of the Code authorizes- the. making v of.the,motion in the county of the defendant’s residence. ■ If an injunction issued in 1845, and the.bül was afterwards , dismissed in-the-same year, (the injunction being thereby dissolved,) a statutory judgment against-tbe-.obligors in the injunction bond resulted, .notwithstanding the register may have failed to issue to the.,clevk.,of the circuit court a certificate of dissolution of .the injunction,..as.required by the .act of 1841. — Wiswall v. Munroe, 4 Ala. 9. This statutory judgment, thus resulting, would he a judgment rendered against a surety,, within section 2644 of .the Code; and the surety, having satisfied the judgment, would have a right gto proceed by notice, as is' done in this -(me.

[4.] We think the cause of action is sufficiently shown by the notice to have appertained tff'the plaintiff in his capacity of administrator. — Watson v. Collins' Adm'r 37 Ala. We think, also, that the notice "sufficiently avers that rfeke plaintiff was the administrator of the estate.

[5.] After Rutherford, the Witnessj. had ceased' tó be sheriff, and had returned the execution,-his authority, virtute officii, to receive payment of the execution, Was gone. But the money paid to Rutherford was handed "over to the plaintiff’s attorney as a payment, and seems to -have-'been go accepted'. This fact makes the payment good,’and,'notwithstanding Rutherford’s want of authority,'would discharge the execution.

Care in the procurement of the proper evidence will avoid the other questions presented by the rulings upon the admissibility of testimony, and-we .therefore do ,no.t notice them in this opinion.

Reversed and remanded.