77 Ala. 549 | Ala. | 1884
In Wilburn & Co. v. McCalley, 63 Ala. 436 — the title under which this cause was last before us on appeal — it was decided that the proceedings of the Probate Court, which authorized the execution of the note given by "W". J. McCalley, as the administrator of his wife’s estate, were void for -want of conformity to the statute, and, for this jurisdictional defect, neither the note itself, nor the judgment to which it was reduced by suit, was binding upon the estate of the decedent. That case, however, is no authority for the assumption, that the note did not impose a personal liability upon McCalley, as its maker. If his petition to the Probate Court had contained all the requisite jurisdictional allegations, and the order of the court based on the petition had been otherwise regular, it is very clear that the obligation given by
We can see no good reason whatever for the contention, that the injunction bond given by the appellants is not a statutory bond. It is executed in double the amount of the judgment sought to be enjoined, with proper security, being payable to, and approved by the register, and is also conditioned, on the dissolution of such injunction, to 'pay the amount of the judgment enjoined, with interest, and such damage and costs as may be decreed against the party at whose application the writ was granted. — Code, 1876, § 3869. The suggestion, that the purpose and legal effect of the writ was not to enjoin the judgment, but only to prevent the sale under it of a particular piece of landed estate, is refuted by the entire chancery pro
The bond being one to “ enjoin proceedings at law on a judgment for money,” in view of the dissolution of the injunction, has impressed upon it, by express provision of the statute, “the force and effect of a judgment;” and having been certified by' the register, to the clerk of the court in which the judgment was rendered, execution was properly issued against the appellants, as obligors, for the amount of such judgment which had been enjoined, with interest and damages. — Code, § 3876._
The judgment of the Circuit Court, quashing the petition for supersedeas filed by appellants, and dismissing the same, is free from error, and must be affirmed.