47 Ala. 652 | Ala. | 1872
Lead Opinion
This is a suit in chancery, commenced by tbe Tallassee Toll-Bridge Company as complainants, in tbe 14th district of tbe middle chancery division, on the sixth day of September, 1858. Tbe parties were all brought into court, and the cause submitted upon tbe pleadings and proofs as to some of tbe defendants, and upon tbe decree pro confesso as to others, at tbe November term, 1859, of said court, and held up for consideration and decree in vacation or at tbe next term. And at tbe May term,-1860, tbe decree was rendered disposing of tbe equity of tbe case, and directing a reference to tbe master to take and state an account as ordered in tbe decree. Tbe master took this account and made a report at tbe November term of said court in tbe year 1860. This report was allowed to stand over without confirmation, and tbe master was ordered to make a further report at tbe next term, which was tbe May term, in tbe year 1861. At this term tbe register read a report, which was ordered to be over. Tbe report thus taken is set out in tbe record. But it merely shows that tbe reference ordered bad been deferred by tbe register to enable tbe complainant to make application to tbe court respecting tbe same. At tbe May term, 1861, of tbe court, tbe order of last term was vacated, and tbe register was directed to report as required by tbe complainant to this term, if practicable; but if not, then at tbe next term of said court. At tbe May term, 1862, there was some further reference directed, and a report made at tbe November term, 1862, when a further reference was ordered, and tbe cause was continued. In 1863, at tbe May term of said court, tbe register read a re
Upon this state of the record, the learned chancellor, in the court below, based his final decree, which is dated November 25, 1868. And I recite so much of it below as I suppose is intended to be assailed by the errors assigned by the appellants, that is to say: “ It having been referred to the register of this court, as master in chancery, at the June term, 1862, to take and state an account for principal and interest due complainants, in- the bill mentioned, and the register at the same term of the court having reported that there was the sum of $2,578 79; and it having again been referred to the register to ascertain and report at the November term, 1867, the amount of interest that had accrued on the amount reported by the register of the court as aforesaid, and the said register having reported that there was interest to the amount of $846 65 accrued on said amount, and that the amount for principal and interest amounted to the sum of $3,425 39, and the sand several reports having been confirmed by the court, It is therefore ordered and decreed by the court, that the complainants recover of defendants the sum of $3,425 39, and the costs of ■this court,” <fee.
From this decree the appellants, who were the defend
“ 1. The overruling the demurrer to the complainants’ bill of complaint.
“ 2. The decree against the defendants and the order of reference to the register to take the account.
“ 3. That there was no lawful court in Alabama from January 11th, 1861, till the rightful government was established, and all the decrees and decretal orders rendered during that time are void.
“ 4. The rendition of the final clecree is based upon the pretended reports of persons who were not registers of the court.”
This bill is filed to enjoin the defendants from keeping open, for toll, an opposition toll-bridge, within two miles of the toll-bridge of the complainants, and to have said opposition bridge abated, and to compel the defendants to account for the improper receipts for tolls received at said opposition bridge.
The allegations of the bill show tíiat the complainants, as a body corporate, created by act of the general assembly of this State, approved June 30, 1837, built a toll-bridge at Tallassee, across the Tallapoosa river, in this State, at very considerable expense to themselves, under the terms and conditions prescribed in said act, and gave bond to keep the same in repair, as required by law. Said act is made an exhibit to the bill. After the complainants had erected their said bridge under authority of said act. and had the same in successful and profitable operation for some years, the defendants, under pretense of authority of a certain act of the general assembly of this State, approved January 30, 1850, entitled “ An act to incorporate the Central Plank Road Company,” erected an opposition toll-bridge over the same stream within two miles of their bridge, by means of which the complainants were greatly injured in their business by loss of tolls thus occasioned, so that the receipts from their bridge had been barely sufficient to keep it in repair, and had yielded them nothing in the way of net profits, And it was also alleged that if
The act of June 30, 1837, establishing a bridge company to build the toll-bridge over the Tallapoosa river, is a contract by which the State grants certain franchises to the corporators, in consideration that they agree and bind themselves to erect the bridge and keep it in repair, and permit the passage of the citizens of the State and their property over it at certain specified rates of toll. — Dartmouth College v. Woodward, 4 Wheat. 629. This contract, like all other contracts, includes the laws defining its stipulations at the time it is entered into. — Von Hoffman v. City of Quincy, 4 Wall. 535, 550; Bronson v. Kinzie, 1 How. 319; McCrakin v. Hayward, 2 How. 612; Planters Bank v. Sharp et al., 6 How. 327; Beers v. Houghton, 9 Pet. 359; Ogden v. Saunders, 12 Wheat. 231; Mason v. Haile, 12 Wheaton, 373; Sturgis v. Crowningshield, 4 Wheaton, 122; Green v. Biddle, 8 Wheat. 92; Terret v. Taylor, 9 Cranch, 43; Fletcher v. Peck, 6 Cranch, 87; New Jersey v. Wilson, 7 Cranch, 164; People v. Bond, 10 Cal. 570. Then, the legislature can not alter or impair such a contract without the consent of the corporators, unless this power was reserved at the time it was made. — Const. U. S., Art. I, § 10, cl. 1; Paschall’s Const. U. S., pp. 153, 155, 156, and cases there cited. At the time the act last above referred to was passed, the law of this State forbid any toll-bridge to be established within three miles of one already erected. Aik. Dig. p. 514, § 29. This being the law, it follows that the legislature could not give authority to set up a second toll-bridge ‘within the prohibited distance of three miles from the one already established. And if such second bridge was so set up, a court of equity would restrain the owners from using it as a toll-bridge, to the injury of the owners of the one already established. — Gates v. McDaniel et al., 2 Stew. 211; Harrell & Croft v. Ellsworth et al., 17 Ala. 576; Bridge Proprietors v. Hoboken Co., 1 Wall. 146. The complainants’ bill was not without equity, and the de
The allegations of the bill are fully sustained by the proofs. The defendants offered no evidence in support of their answer. And the evidence for the complainants fully overturns the denials of the answer. In such case the complainant is entitled to relief. Here the decree does not go beyond the allegations and the proofs. There was no error, then, in the decree fixing the complainants’ equity and making a1 reference to the master. This decree was made before the passage of the ordinance of secession, and was valid. This disposes of the second assignment of error.
The decrees taken in this cause during the supremacy of the rebellion were all interlocutory orders, and there was no final action taken on any of 'them. They amounted to so many continuances. This would have been the legal effect of the interposition of the insurgent authority, even if no continuances had been granted. There was no court to try the cause, and it necessarily stood continued. After the restoration of the rightful State government, there was a new reference to the master, to state an account between the parties therein named. If the directions given for the taking and stating this account were not satisfactory to the defendants, other directions should have been asked, and the report should have been excepted to before its confirmation. It is too late to raise the objection here for the first time, when the report is not on its face erroneous. Gerald v. Miller’s Distributees, 21 Ala. 433. The final decree was made after the suppression of the rebellion and the restoration of the legal State government on the 25th of November, 1868, and it is based upon the master’s report made to the court and confirmed at that term. And it supplies the facts upon which the final decree rests. Such a decree is not erroneous for the reasons assigned in the third and fourth assignments of error. It appears that appellants gave bond suspending the decree in the court below —Rev. Code, § 3489.
The decree of the chancellor in the court below is there
Rehearing
The ground' relied on for a rehearing in this case is the defective service of the pro'eess upon the minor defendants, who were under the age of fourteen, when the bill was filed in the court below.
This allegation is but a new assignment of error, not insisted on in this court before. The record shows that the minor defendants answered the bill by guardian ad litem; and although this was not very regularly done, no objection was made to the irregularity in the court below or heretofore in this court. The rule of practice requires that the error complained of shall be concisely stated in writing, so as to point out in what the error consists. Errors not so assigned are to be regarded as waived. And the assignment will not be sufficient if it is merely general, and not particular, and directed to that portion of the record in which the error complained of is supposed to exist. — Eslava v. Lepretre, 21 Ala. 504; Freeman v. Swan, 22 Ala. 106; Curry v. Woodward, 44 Ala. 305. And when the error is properly assigned, this court will not feel bound to notice it, unless it is pressed in the brief or the argument of the counsel for the appellants on the hearing, except, perhaps, a want of jurisdiction. — Arrington et al. v. Roach, Adm’r, 42 Ala. 155; Henderson, Adm’r, v. Huey et al., 45 Ala. 275, 284; Long v. Rodgers, 19 Ala. 321; Withers v. Spears, 27 Ala. 455; Howard v. Coleman, 36 Ala. 604. There were four assignments of error made upon the record at the hearing. There are none of them that raise the objection insisted on in this application. An objection not insisted on is an objection waived. — Evans v. St. John, 9 Port. 186, and cases supra. Governed by the practice
