Halsey v. Murray

112 Ala. 185 | Ala. | 1895

HEAD, J.

This case grows out of certain litigation between John Thomas Eason, on the one side, and the firm' of Baldridge, Murray & Halsey, and two members thereof, upon the other, one branch of which was decided by this court at a former term. — Baldridge v. Eason, 99 Ala. 516. After the affirmance by this court, in that case, of the decretal order dissolving the injunction, which had issued at the suit of W. F. Baldridge and C. H. Halsey, Eason caused proceedings to be taken for the collection of his claim which were based upon the theory that the obligors upon the injunction bond and upon the supersedeas bond — given to restore the injunction pending the appeal to this court. — had become liable to him for the amount of the judgment he had recovered against the firm of Baldridge, Murray & Halsey; and'whether or not this view was correct is the main question to be determined upon this appeal, the correct solution of which will require the consideration of several subsidiary propositions.

The bill proceeds upon the idea that the injunction which issued against Eason and the sheriff of Madison 'county, upon the complaint of W. F. Baldridge and C. H. Halsey, was an injunction of a judgment, or, what is the same thing, an injunction “to stay proceedings after judgment,” within the meaning of section 3522 of the Code, and that the main defendant in that suit, upon the dissolution of the writ, was entitled to summary process for the collection of his judgment against the firm of Baldridge, Murray & Halsey out of the prin- ■ cipal and sureties upon each of said bonds — :the original injunction bond and the bond given to restore the injunction pending the appeal.

1. We do not think this proposition can be successfully maintained. An examination of the prayer for the injunction and of the writ which actually issued •shows that the only effect of the injunction was to restrain the sheriff from levying upon the individual property of the complainants, under an execution which had issued on a judgment against the firm, and which was leviable only upon firm property. The writ of injunction which was prayed and obtained did not prevent the enforcement of the judgment — did not stay authorized proceedings to collect it; it did not even restrain a levy of the execution upon- firm property, which was the only levy the sheriff was authorized to make. Notwithstanding the writ of injunction, Eason could have proceeded to collect his judgment out of the firm — the only party against whom he had recovered any judgment— and hence he was not entitled to a bond conditioned to pay a judgment which had not been enjoined. The sections of the Code, -relating to injunctions of judgments •and the bond required to be given in such cases, have reference to such restraining writs as interfere with and delay the collection of. a judgment — to writs operating such a stay of proceedings after judgment as is the equivalent of an injunction of the judgment. This construction of the nature and character of the prayer of the injunction bill, and of the writ issued in accordance therewith, is in entire harmony with, and the necessary result of, our decision in Baldridge v. Eason, supra. There, we pointed out, that, although the bill had been prepared under a misapprehension of counsel, yet in reality, it showed no more than a threatened trespass— an abuse of process — which the chancery court had no jurisdiction to redress. Hence’the bill was declared to be wanting in equity, and the injunction was dissolved. The conclusion we announce is in harmony with our own decisions, and those in other States, construing similar statutes. In the early case of Dunn v. Bank of Mobile, 2 Ala. 152, judgment had been obtained against one Dunn, and levies made thereunder upon property claimed to belong to his children. An injunction was procured to restrain the sale. After holding that the statute then in force, as to a dissolution of an injunction having the force and effect of a judgment, applied only to cases in which the judgment was enjoined, the court ■said: “In the case before us, the judgment remained ■in full force and the execution itself was only suspended as against the property levied on. The bond then did not operate as a judgment.” In Wiswell v. Munroe, 4 Ala. 9, this language was used: “It results from this, that the bond executed by Cullum and Munroe not operating as a supersedeas, whatever may be its effect as a bond at common law, cannot have the force and effect of a judgment upon a dissolution of the injunction, as that effect is only given to such bonds as enjoin the judgment, which was not- the fact in this case,”

In Bartlett v. Gayle, 6 Ala. 305, an injunction was issued at the suit of a stranger to restrain the collection of an execution by the sale of certain property,' which had been levied on. The court remarked in the opinion, “that no execiition can be issued upon the bond, (1) because it does not enjoin the judgment but only proceedings thereon, as it respects the premises in controversy; (2) because the defendant at law is not the complainant in equity.”

The Supreme Court of Arkansas, in Stanley v. Bonham, 12 S. W. Rep. (Ark.) 706, makes the proposition clear in the following extract: ‘ ‘As to the assessment of damages, on dissolution of an injunction, the statute does not authorize an assessment except in cases where the proceedings have been stayed — that is when the enforcement of the judgment has been enjoined. An injunction preventing the sale of particular property does not prevent the execution of the judgment within -the meaning of the statute.”

And in Hardin v. White, (Iowa) 16 N. W. Rep. 580, it was held that where an action is brought to restrain the sale of a particular piece of property under an execution, issued on a judgment, and not to restrain the execution generally, the bond need not be double the amount of such judgment and conditioned for its payment, since the court was of opinion that the object of such action was not' to stay proceedings upon a judgment.

2. Nor do we think it can avail the appellee, as his counsel argue, that the bill of Baldridge and Halsey against Eason, was filed under the supposition that the judgment upon which the execution issued, was collectible out of the individual members of the firm, and hence that it had to be avoided by showing a good defense against it, and a want of opportunity to make that defense, before the complainants would be entitled to restrain the collection of the execution out of their individual property. Bills and writs must be construed according to their true legal effect, and not according to. what counsel may erroneously suppose to be their operation and meaning. Injunction bonds are intended to furnish suitable security for an injury resulting from improper resort to the extraordinary process of injunction, procured upon an ex parte application, and restraining in terms some act upon the part of the defendant; and the inquiry to be made in determining what the condition of the bond should be, is not so much what relief upon final hearing the complainant seeks by his bill, as what does the preliminary writ prevent the defendant from doing — what interference does it present to a course he might otherwise pursue. Looking at the prayer of the bill and the writ issued thereon, couched in the same language, we learn that, no matter what the complainants or their counsel supposed, no matter what relief they sought or expected ultimately to receive, the injunction produced no restraining influence upon any legitimate effort of Eason or the sheriff to collect the judgment from the firm of Baldridge, Murray & Halsey.— Shorter v. Mims, 18 Ala. 655. There was, therefore, no reason why security should be furnished to protect the main defendant — Eason—against injury, to result, as from a wrongful injunction of his judgment. The bond should have been conditioned according to section. 3524 of the Code, which applies in all cases, other than those spe’cially provided for by sections 3522 and 3523. There has been an amendment of these sections, the effect of which is that the bonds authorized by them shall be payable to the opposite party instead of to the register ; but that amendment exerts no influence in this case. — Acts of 1888-89, p. 116.

3. There is still another reason why the injunction issued at the suit of Baldridge & Halsey did not come within section 3522 of the Code, and why the bond to be given was not required to be conditioned according to that section. This reason is mentioned in the extract above quoted from Bartlett v. Gayle, 6 Ala. 305, and grows out of the fact that complainants were not the parties against whom the judgment was rendered — were strangers to that judgment.

In Barnard v. Davis, 54 Ala. 565, where a judgment had been enjoined at the suit of a stranger, Judge Stone, referring to sections of the revised Code, corresponding with the sections of the Code of 1886 now under consideration, said that those sections were “intended and framed to meet the wants of defendants in judgments who seek to relieve themselves from the payment thereof by force of some defense of equitable cognizance.” That this is the true interpretation of the sections of the Code, relating to injunctions of judgments, will, we think, satisfactorily appear from an analysis of their provisions. There .are five of these sections — 3521, 3522, 3528, 3529 and 3531 — which are in pari materia and must be construed with reference to each other. Taken together they furnish just and equitable rules of procedure, -well adapted to the demands of complainants seeking relief against judgments at law, and at the. same time affording adequate security to defendants (plaintiffs at law), for the payment of the judgment — the doing of equity— if the injunction, operating a stay of the collection of the judgment, be wrongfully obtained.

• Under our dual system, there may be a defense to a demand not available in the law court, or a defendant may, without fault or neglect on his part, be deprived of an opportunity to present a defense, available there ; thus necessitating a resort to a court of equity to secure his rights. Until impeached and avoided, a judgment is conclusive as between the parties and their privies, that the defendant owes the plaintiff the sum adjudged, and, therefore, if a defendant should desire to invoke the aid 'of a court of equity to make further controversy, upon the merits of the case and in the meantime, to withhold •payment of the judgment, it is but just that he should not be allowed to doubly vex his opponent at the same time, by continued litigation in the law court, or upon appeal therefrom, and that he should furnish security for the doing of equity — the payment of the judgment with interest, damages for delay, if it be a delay case, •and costs — if it turn out, he has wrongfully sued out the writ. So it is, and no doubt for these reasons, the legislature has declared in section 3521 that “an injunction obtained by a defendant to a judgment at law, to stay proceedings thereon, operates as a release uf errors as to such defendantand in section 3522 has provided •that the bond to be given, upon the procurement of an injunction to stay proceedings after judgment shall be “conditioned on the dissolution of such injunction to pay the amount of the judgment enjoined, with interest, and also such damages and costs as- may be decreed against such party.” The concluding clause of this section, relating to the payment of damages that may be decreed, must be interpreted in connection with section 3528, where it is enacted, that upon the dissolution of an injunction to stay proceedings .in an action “the chancellor may decree six per centum damages on the amount of money for which such judgment was.enjoined, if of opinion the injunction was obtained for delay.” No reason can he perceived why the legislature .should require security for the payment of a judgment,, from a person out of whom it is not. collectible, or .provide a penalty for obtaining an injunction for delay, against .a stranger to the judgment, whom delay would not benefit.

Those, against whom it is necessary to legislate to prevent resort to legal proceedings, for mere delay, are the parties who are liable for the debt, and from whom its collection would be otherwise coerced. Following• the motives which inspired these sections, it may be remarked that if an injunction of a judgment be dissolved, prompt and summary proceedings should be allowed to force collection of a claim, twice subjected to judicial investigation, without necessitating further resort to the tardier remedy of an action upon the bond ; hence it is we find in section 3529 the declaration, which accords to the bond the. force and affect of a judgment and authorizes execution thereon, “for the amount of the judgment which has been enjoined, interest and damages decreed; ’ ’ thus referring to the damages that may b.e decreed for delay, under seetion 3528 — the only instance in which authority is conferred upon the chancery court in the injunction proceeding, to award damages upon the bond, damages being usually, indeed in all other cases, recoverable only in a separate action. Under our rules of chancery practice, an injunction is often dissolved, before fina] hearing’, thus withdrawing the obstacle in the way of the collection of the judgment, whereas, after a full presentation of the case, it may appear that the injunction was properly obtained and hence should be made perpetual. Therefore, it is provided by seetion 3531 that when ‘ ‘an interlocutory decree is made, dissolving an injunction to stay proceedings on a judgment at law, the chancellor must require of the defendant a refunding bond, ***** conditioned to refund the money and interest he may collect on the judgment, if the same is on final hearing perpetually enjoined ;” and further provision is made for “a final decree. on such bond against any or all the parties thereto.” Now, when a stranger to the judgment for any reason, seeks to enjoin its collection out of the defendant and its payment- to the plaintiff, and a preliminary writ to that effect is dissolved, the judgment is not collected by the plaintiff in judgment — defendant in the chancery suit — out of the complaining stranger, but out of the defendant to the judgment', and-, therefore, there could be no reason to require a bond, for the benefit of a complainant, to refund to him that which has not been collected or received from him. The refunding bond is for the protection of a complainant, who may show a good defense in equity to the judgment, and yet, against whom, on account of the interlocutory decree of dissolution, the judgment may have been wrongfully enforced. If, however, we read the statutes under review with the idea in mind that they are “intended and framed to meet the wants of defendants in judgment, who seek to relieve themselves from the payment thereof, by force of some defense of equitable cognizance,” then a provision for a refunding bond for the benefit of such defendants, complaining in equity against the judgment, becomes a plain demand of justice and equity. This construction is supported by the decisions in other jurisdictions. Thus, in Carlin v. Hudson, 12 Texas, 202, it is said that “the statute authorizing the court to award damages for delay, on the dissolution of an injunction has reference to injunctions to restrain the collection of money obtained by the judgment debtor, or some one who is a party to the judgment.” In Moore v. Hallum, 1 Lea (Tenn.) 511, the court, in affirming a decree dismissing an injunction bill, gave this opinion: “We think the chancellor also properly held that no judgment ought to be rendered against the complainant on the injunction bond for the debt, it not being the collection of his own debt enjoined, nor one for which he was in any way liable. We háve so held in a somewhat similar case. The fact that thé bond, under the fiat of the chancellor, was improperly required to be in double the amount of the debt, does not change the result.”

The case of Thomas v. Brashear, 4 Mon. (Ky.) 65, holds that damages by statute on the dissolution of an injunction is given only where the defendant to the judgment is complainant and obtains the injunction, not where the order is obtained on the application of others.

Mr. High, in his work on Injunctions embodies this statement in the text: “Where a statute provided that no injunction should issue to -stay proceedings at law after verdict, unless the person applying therefor should enter into a satisfactory bond to the plaintiff in the action at law, conditioned to pay the debt enjoined, with interest and damages, the statute was held to be limited to cases, where the defendant in the judgment sought to restrain its enforcement.” — § 1628. The authority he cites — Scarlett v. Hicks, 18 Fla. 314 — fully justifies the text as will appear from an extract from the opinion, wherein the court, after quoting the Florida statute, thus interprets it: • ‘ ‘The intention of the legislature here was to require at the hands of the defendant at law due security for a compliance with the result of the suit at law, before he could question it in a court of chancery. Having failed in the suit at law, he must give security for a compliance therewith in case he fails to secure the aid of a court of equity. The present case, while it may be within the letter, is not within the evil which the statute was enacted to remedy, or the intention of the makers. Under these circumstances, the rules of construction require that it should not be extended to this case.” The facts were that the bill was brought by a creditor of an estate against the sheriff and another creditor, who, after suggestion of insolvency, had obtained judgment at law, and was proceeding thereunder to subject the assets of the estate to sale, whereby an undue preference would have been obtained.

We have analyzed the statutes and quoted freely from decisions shedding light upon them, because, after careful examination and due consideration, we have been forced to the conclusion, that one of the rulings made by the court, in McCalley v. Wilburn, 77 Ala. 549, cannot be sustained on principle or authority. In that case, the heirs of Mrs. McCalley, under the supposition that a judgment rendered against “'William J. McCalley, administrator of Martha Ann McCalley” was a judgment against said administrator in his official capacity, filed a bill to assail the judgment and prevent a sale of the lands of the estate under the execution issued thereon. They procured an injunction restraining the plaintiffs ‘ ‘froui further prosecuting their suit, ’ ’ — thus using language broad enough to prevent any effort at enforcing the .judgment — and, restraining the sheriff “from further proceeding upon said execution against said property in said bill described.” Bond was given conditioned to pay .the judgment enjoined with interest, and such damages. and costs as might be decreed. The bill having been dismissed, thereby dissolving the injunction, execution was issued against the obligors upon the bond, as a .statutory obligation. A petition for a supersedeas was •filed, which the circuit court dismissed. An appeal from the judgment of dismissal brought the case to this court, for a decision of the statutory character vel non of the-bond.. It was here held: •First, that the judgment complained of was simply a personal recovery against the individual, who was administrator of said estate,-the words following his name in the proceedings and judgment entry being considered merely as deseriptio personae; from-which it followed, as a necessary consequence that the complainants — heirs of. Mrs. McCalley — were strangers to the judgment; and -it was held, second, that this fact did not prevent the bond from being a statutory obligation. The opinion upon the second point is very brief and cites no authorities: A bond is not statutory, nor summarily enforceable, unless it contains, in substance, the very cohditions required by the statute for ■the particular case. — Reynolds v. Cox, 108 Ala. 276. The decision was, therefore, in effect, that if stran•gers to a judgment, under an erroneous impression that it is a liability against them or their property, enjoin its collection, the statute requires them to give security for its payment, and upon dissolution of the injunction to pay it, although there may be no difficulty .whatever, if execution be issued against the defendant to the judgment, in collecting the full amount, principal .■and interest, out of the person liable therefor; a:qd .although the plaintiff in the judgment may have, therefore, suffered.no other injury from the injunction, than the payment of attorney’s fees for procuring the dissolution. We do not think the statute was designed to -accomplish such a result. When-a stranger to a judgment enjoins its collection, he should give-a bond, conditioned according to section 3524, “to pay all damages and costs which any person may sustain by the suing out of such injunction, if the same is dissolved.” . Under such a bond, if the defendant in judgment, while the writ ivas in force, shall have become insolvent, so that the judgment cannot be collected out of him, then the judgment can be recovered against the obligors, as a part of the damages sustained ; but if, after dissolution, the debt is easily collectible out of the party liable primarily for its payment — the judgment debtor — then the injunction has not caused the loss of the debt, and the complainant ought not to be required to pay it. An exaction of payment from a complainant and his sureties, under such circumstances, lias every objectionable feature which attends the enforcement of a penalty, pure and simple. Upon this line of reasoning, it was held in Hanley v. Wallace, 3 B. Mon. (Ky.) 184, that where a judgment is enjoined at the suit of a stranger to it, and an injunction bond given by him to restrain the sale of a particular article of property, whatever may be the condition of the bond — even though conditioned for the payment of the debt — it operates in equity, only as a security to the obligee for the injury that may accrue, not for the amount of the debt.

The bond given in McCalley v. Wilburn, supra, was not the obligation the statute required and although it may have been enforceable as a common law contract— whether so or not, and if so, to what extent, we need not inquire — it ought not to have been enforced by summary process, and the supersedeas ought to have been granted. The case is in conflict with Bartlett v. Gayle, 6 Ala. 305, and Barnard v. Davis, 54 Ala. 565, and the decisions from other States, reviewed in the opinion. It is, therefore, overruled.

4. Rule 87 of Chancery Practice prescribes that the chancellor “shall, upon milking final or interlocutory decree, which has the effect of dissolving an injunction, * * * * prescribe the penalty and condition of the bond to be given by the appellant, should he thereafter appeal from such decree.” In the order which the chancellor made in the injunction case of Baldridge and Halsey v. Eason, he fixed the amount, but not the condition as the rule required. We may remark, that supersedeas bonds, in such cases should be framed with reference to the damages likely to ensue from the delay occasioned by the appeal; security and indemnity being the prime consideration. — Hughes v. Hatchett, 55 Ala. 539, 547.

Neither the rule nor any statute has declared what the condition shall be, nor can we do so. This must be left to the sound discretion of the chancellor to be exercised in view of the circumstances surrounding each case. But whether the chancellor complies with the. rule, and a bond be given accordingly, or whether,. as here, no condition is prescribed, but a voluntary bond with condition is executed, as and for a supersedeas bond, there is no rule or statute giving supersedeas bonds, restoring injunctions, in any case, the force and effect of judgments, or authorizing execution to be summarily issued against the obligors thereon, upon an affirmance by this court, of the decree of dissolution. The register had no authority to certify the supersedeas bond to the clerk of the circuit court, and the clerk had no right to issue process against the persons who executed it.. The writ which the sheriff threatened to levy upon the property of the complainant was without validity, and upon proper application would have been quashed or superseded by the circuit court, whose officer issued it. — Shorter v. Mims, 18 Ala. 655; Hill v. McKenzie, 39 Ala. 314; Cobb v. Thompson, 87 Ala. 381.

5. Neither did the original injunction bond have the force and effect of a judgment, according to the principles declared in this opinion ; and, hence, the clerk did not certify truly when he furnished a certificate that Eason had recovered a judgment in the circuit court against the obligors upon said bonds. No lien was obtained upon the property of said obligors by the. filing of that certificate, in the office of the probate judge, even if it be conceded — a question upon which we express no opinion — that the statute authorizing the registration of judgment and decrees applies to statutory or office judgments, arising out of a forfeiture of. the bonds required by statute in judicial jiroceedings., The only effect of the filing of the certificate which also embraced the actual judgment against the partnership, was to create a lien upon firm property — if any existed in the county subject to execution — of Baldridge, Murray & Halsey. It results from what has preceded, that the chancellor’s decree can not be sustained, upon the theory that the bonds were statutory, creating by force of the statute a liability against the obligors for the amount of Eason’s judgment against the said firm.

6. Counsel for appellants have contented themselves ■with, discussing the statutory character vel non of the bonds ; but it will be necessary to proceed a step further. The writ of injunction was dissolved and the decree of dissolution was here affirmed. Whatever liability was thereby fixed against the obligors, a surety might voluntarily pay without waiting to be coerced by process, and such voluntary payment would not defeat his right to reimbursement from the principal or contribution from a co-surety. — Stallworth v. Preslar, 34 Ala. 505. Payment under an invalid execution is treated as voluntary. Jenkins v. Lockard, 66 Ala. 377. By such payment, the surety only assumes the burden of showing that what he paid was in fact recoverable upon the bond. — Martin v. Ellerbe, 70 Ala. 326. If the bonds were not good as statutory liabilities, they may still be valid and binding as common law obligations. Assuming, therefore, for the sake of the argument, that the payment of the amount of Eason’s judgment by Murray, upon an execution issued on the supersedeas bond, and the 'taking of a transfer of the judment and said execution could be treated as a satisfaction of the liability against the obligors, upon both the injunction and supersedeas bonds, entitling him to contribution from co-sureties upon either of them, the question then arises, has Murray averred or proven a state of facts, authorizing the conclusion that Eason could have recovered the amount so paid, in an action upon either of said bonds, as a common law obligation? Has he established that in paying the amount of the judment against the firm of Baldridge, Murray & Halsey, he simply avoided the costs of litigation, which would necessarily have compelled him, as surety, to pay the amount? It is familiar learning that the liability of a surety can not be extended beyond the terms of his contract, and that in a proceeding upon the bond the liability of the principal obligor can not be extended beyond that of the surety. — Vann v. Lunsford, 91 Ala. 576; Bein v. Heath, 12 Howard 168. This leads us to an examination of the terms and conditions of the bonds, averred in the bill to have been executed by the complainant as the surety of Baldridge and Halsey. The two are substantially identical in their language, and particular reference to one will suffice. The injunction bond recites that a circuit judge had granted an order, directing the register “to issue a writ of injunction as prayed for in the bill,” filed by Halsey and Baldridge as complainants against John Thomas Eason, defendant, ‘ ‘upon complainants executing this bond; ’ ’ and it is then conditioned to pay or cause to be paid, (1) “the amount of the judgment herein enjoined with interest,” and ■ (2) ■ ‘ ‘such damages and costs as may ' be decreed against such party,” if the same (meaning the injffnct-ion ordered to issue and which did issue upon the execution of the bond) is dissolved. The second clause of •the condition is easily disposed of. It is not averred in the bill nor proven that ahy damages or costs were decreed against Baldridge and Halsey, in the injunction suit, or that any damages or costs, if anjr were so decreed,'had been paid by the complainant, Murray. Hence he showed no right'to re-imbursement or contribution on account of the second clause of the condition. Indeed, we may presume no damages were decreed within the meaning of the bond, since the case made by the bill against Eason was not one in which the chancery court was authorized to decree damages. — Bein v. Heath, 12 How. 168, supra. What effect can be given to the first clause of the condition? If the obligors upon the bond had agreed to become liable for the amount of the judgment, with interest, which Eason had recovered against the firm of Baldridge, Murray & Halsey, described with particularity in the bill — a condition which might be more onerous than that provided by the statute for the case — the question would arise whether the contract could be enforced, to the full extent of its terms, as held, in respect of a replevin bond, in Slutter v. Kirkendall, 100 Pa. St. 307; or whether it would, in equity, be treated as security for the actual damages sustained (necessitating averment ■ and proof of those damages), as held in Hanley v. Wallace, 3 B. Mon. (Ky.), 184, above cited.. But we do not think the question is so presented. The condition is simply to pay the judgment “herein enjoined.” What that judgment is, if in fact one be enjoined, can not be ascertained ■ from the bond alone considered'. That instrument refers to the Hat of the chancellor, the prayer of the bill, and the injunction which issued on the execution of the bond, to which resort must be had, and which, on account of such reference, must' be read into the'bond. Pursuing this course, it appears that the only injunction which issued, or was prayed, restrained merely the levy of an execution upon the individual property of the complainants — that no judgment was “herein enjoined;” and when, for the purpose of calculating the liability, we look for the date, amount and other identifying particulars of the judgment, said to be “herein enjoined,” we utterly fail to find them. The bond, therefore, in this respect, is inconsistent and contradictory. The first clause of the condition requires the obligors to pay something which does not exist; and a thing without existence, is nothing. That portion of the condition must, therefore, be entirely rejected as meaningless. — Post v. Doremus, 60 N. Y. 371. We could not, without doing violence to the language and extending the liability of the obligors far beyond their undertaking, hold that the argreement to pay “the judgment herein enjoined,” is in effect an agreement to pay a judgment, which was not enjoined at all. Murray voluntarily paid what could not have been coerced from him, and hence he can not compel re-imbursement or contribution from appellants. The conclusion, therefore, is, that appellee has failed to show himself entitled to the relief lie procured. The 8th, 9th, 14th and 15th grounds of the demurrer were well taken and, upon those grounds, the demurrer ought to have been sustained.

Let the decree of the chancellor be reversed and the cause remanded to be disposed of according to the principles of this opinion, unless amendment of the bill be made so as to show that complainant is entitled to some relief.

The defendants in the preparation of their answer have unnecessarily encumbered the record by exhibiting therewith proceedings and pleadings in other cases between the parties, . and have duplicated several documents shown by the bill. They have even caused the opinion of this court in Baldridge v. Eason, 99 Ala. 516, to be twice annexed to the answer. By this violation of the rule against prolixity, the transcript has been swollen far beyond what it ought to have been. The cost of transcribing this unnecessary and immaterial matter should be borne by the parties committing the fault. Let one-half of the ' cost of preparing the transcript be taxed against the appellants.

Reversed and remanded.