74 Ala. 427 | Ala. | 1883
— This cause was submitted on briefs near the close of the last term, and we were not informed it was a preferred case. Had we been so informed, it would have been
The present appeal is from an interlocutory decree of the chancellor, refusing to dissolve the injunction, which was moved for on several enumerated grounds. First, want of equity in the bill. There can be no question that the bill contains equity. — Code of 1876, §§ 3846-7. Second, because the affidavit to the bill is insufficient. This is no ground for dissolving an injunction, unless the complainant, upon being ruled thereto, fails to verify his bill by a sufficient affidavit. — Jones v. Ewing, 56 Ala. 360.
The third ground urged for dissolving the injunction is, that the answers deny every material averment of fact, on which the equity of the bill is made to rest.. Against this, it was urged by complainant, that defendant Weis was in contempt by violating the injunction, and therefore could not be heard on'his motion to dissolve, until he purged himself of the imputed contempt. Such is undoubtedly the law, if the facts exist as -alleged. — 1 Danl. Ch. Pr. 504-5 ; Ib. 806 ; 2 Ib. 1683. The papers showing the alleged contempt are not found in this record. The chancellor, in his decree refusing to dissolve, employs this language : “ The complainants, in opposition to such motion, suggested that the moveants are in contempt of the court, and offer the papers on file in the cause, showing the affidavit before the register, the order of the register,, the writ of attachment issued by the register, and the indorsement thereon, tending to show that they have disobeyed the injunction which they now move to dissolve.” The proper construction of this language is, that the papers on file showed the affidavit made before the register, the order of the register thereon, the writ of attachment [for contempt] issued, and the indorsement thereon, we infer, of the sheriff’s return. This, at least, shows a prima facie case of contempt, and disabled the moveants to have a hearing on their motion to dissolve, based on the denials in the answer.
If the papers on file did not show what the chancellor recites they did, they should have been incorporated in the record, to enable us to pass on their sufficiency. — Tillman v. Spann, 68 Ala. 102.
The decree of the chancellor is affirmed.
