Lauderdale v. McAllister, 68 So. 984

Lauderdale v. McAllister

68 So. 984 | Ala. | 1915

ANDERSON, C. J.—

(1, 2) The affidavit to the bill is not sufficient to support a temporary injunction, but this is a mere irregularity which should not work a discharge of the injunction until opportunity is given to amend the affidavit. — Woodward v. State, 173 Ala. 7, 55 South. 506, and cases there cited. The chancellor erred in not holding the affidavit insufficient, with, a conditional decree that the injunction should be dissolved upon a failure of the complainant to- perfect the same within a fixed time.

(3) Although the bill shows cause for injunctive relief, if the sworn answer denies all the averments there*178of upon which, any right to relief could be predicated, the temporary injunction issued is properly dissolved. —Weeks v. Bynum, 158 Ala. 231, 48 South. 489; Hall v. A. B. & A. R. R. Co., 158 Ala. 271, 48 South. 365.

(4) The chancery court, however, is vested with some discretion in the matter, and need not dissolve the injunction, even upon sworn denials of the answer in case the dissolution would entail irreparable loss upon the complainant.- — Gilreath v. Carbon Hill Co., 157 Ala. 153, 47 South. 298.

(5) The sworn answer in the case at bar denied the material allegations of the bill, and the same entitled the respondent to a dissolution of the temporary injunction, he having moved for same, unless irreparable injury was liable to be sustained by the complainant. We are at a loss to see how a dissolution of the injunction in question could have caused irreparable injury to the complainant. It did not order a restoration of the status quo, but merely restrained the respondent from diverting the water from its natural flow. It did not order him to close the ditch or to change the flow of the water, but merely to not divert it from its natural flow, and the fact that he was doing so could not be ascertained, except by the proof upon the final hearing. In other words, the injunction, or the dissolution of same left the parties just as they were when the bill was filed, and the status could not be changed, whether the injunction existed or was dissolved until the proof disclosed upon the final hearing whether or not the respondent was diverting the water from its natural flow.

The chancery court erred in not sustaining the respondent’s motion to dissolve the temporary injunction, *179and the decree is reversed, and one is here rendered sustaining same, and the cause is remanded.

Reversed, rendered, and remanded.

Mayfield, Somerville, and Ti-iomas, JJ., concur.