89 So. 600 | Ala. | 1921
The suit was to restrain a trespass on lands, the subject of a pending bill in equity to quiet title filed by the complainant in possession, when “no suit was then pending in any court to enforce or test the validity of said title or claim or encumbrance.” Appellants’ solicitors say of the bill that it was for injunction in aid of a pending suit to quiet title to the land, and further that the affidavits submitted and the negative answers of respondent (appellee) show that appellant “was never in peaceable possession of the land in question.” The right of recovery in the pending suit ho quiet title may not be tried in the instant application for injunction.
In Woodstock Operating Corp. v. Quinn, 201 Ala. 681, 79 South. 253, on authority indicated, it was said that the granting or refusing of a temporary writ of injunction is largely a matter of sound discretion, depending upon the particular facts of each case —the balancing of the probable resulting damages to the respective parties — and is reviewable. Hitt Lbr. Co. v. Cullman Prop. Co., 189 Ala. 13, 17, 66 South. 720; Profile Cot. Mills v. Calhoun Water Co., 189 Ala. 181, 66 South. 50; Kyser v. Hertzler, 188 Ala. 658, 65 South. 967; Francis v. Gilreath C. & I. Co., 180 Ala. 338, 60 South. 919; Scholze v. Steiner, 100 Ala. 148, 14 South. 552. In determining the probable resulting waste or irrex>arable damages to the respective parties by the dissolving of a temporary injunction not only the sworn allegation of the bill and answer may be considered, but also ex parte affidavits duly offered at the hearing on' motion to discharge and dissolve the temporary injunction. Profile Cotton Mills v. Calhoun Water Co., supra: Harrison v. Maury, 140 Ala. 523, 37 South. 361; Gilreath v. Carbon Hill, etc., Co., 157 Ala. 153, 159, 47 South. 298; Nelson v. Hammonds, 173 Ala. 14, 19, 55 South. 301; Kyser v. Hertzler, supra; Barnard v. Davis, 54 Ala. 565. The provisions of Code, .§ 4535, are that upon the hearing of motion to dissolve an injunction the court may consider the sworn bill and answer and also “such affidavits as any party may introduce.” Construing this statute in Kyser v. Hertzler, supra, it was said of Turner v. Stephens, 106 Ala. 546; 17 South. 706, that the rulé there announced was not inflexible, and that the present statute permitted the introduction of affidavits in all such cases and extended the rule announced in that case. Franklin v. Long, 191 Ala. 310, 315, 68 South. 149; Consumers’ Coal &
The case made by the bill is not that of a case of irreparable injury to the property— the subject of the suit — aside from the question of disputed title presented by the pleading. Roman v. Long Dish Tel. Co., 147 Ala. 389, 41 South. 292; Mobile Co. v. Knapp, 200 Ala. 114, 75 South. 881; Barnard v. Davis, supra. The temporary injunction was no doubt granted under the authority to protect the subject-matter of a pending suit and to prevent a change of the status of the rights of the parties therein.
The bill to quiet title by complainant, J. Henry Davidson, was filed, originally, May 21, 1917, and averred that no suit was then pending in any court to enforce or test the validity of the title, claim, or incumbrance, and that proceeding was “referred to and made a part of” the bill in the instant suit. It will be noted that the bill to quiet title to the same lands between the same parties was filed in the chancery court of the county in which the land was situated; and, admitting for the purpose of the question before us, that it was properly drawn under the statute (Davis v. Daniels, 204 Ala. 374, 85 South. 797), the instant bill, filed on May 20, 1920, by the same complainant against W. B. Rice, the respondent in the first bill, praying injunction against him, his agents and sex-vants, to prevent a forcibly changed status as to possession during pendency of first suit, was in its nature a petition for injunction pendente lite to preserve the property or rights in issue in statu quo until a hearing on the merits, and without expressing or having the means of forming a final opinion as to such rights until the bill to quiet title is finally heard. Sixch was the view expressed in the decree from which tihe appeal is taken.
The authorities are agreed that — •
“In order to sustain! an injunction for the protection of propei'ty pendente lite, it is not necessary to decide in favor of plaintiff upon the merits, nor is it necessary that he should nresent such a case as will certainly entitle him to a decree upon the final hearing, since he may be entitled to an interlocutory injunction although his right to the relief prayed may ultimately fail.” 1 High on Inj. (4th Ed.) §§ 5, 6; 10 Am. & Eng. Ency. Law (1st Ed.) 784; 10 Ency. Pl. & Pr. 878.
Such a procedure is dependent upon the ascertainment, to the satisfaction of the courti, of (1) not that the plaintiff has certainly a right, but that lie “has a fair question to raise as to the existence of such a right” (in granting the interlocutory order courts of equity will in no manner anticipate the ultimate determination of the controverted question or right) ; (2) but whether “interim interference, on a balance of convenience or inconvenience to the one party and to the other, is or is not expedient,” that is, merely recognize that a sufficient case has been made out to warrant the preservation of the property rights in issue in statu quo until a hearing upon the merits without expressing or forming a final opinion as to such rights; and (3) it is not of consequence that the cause was in this court by appeal so far as the right and power of tihe lower court was invoked to preserve the
When the chancery court was merged Into and consolidated (Ex parte City Bank & Trust Co., 200 Ala. 440, 76 South. 372; Code, § 5358; Hamilton v. Ala. Power Co., 195 Ala. 438, 70 South. 737; Dixie Lbr. Co. v. Young, 203 Ala. 115, 82 South. 129; Southern Rwy. v. Clarke, 203 Ala. 248, 250, 82 South. 516) with the circuit court and its equity docket thereof, and pending cause by the act of August 16, 1915 (Acts 1915, p. 279, § 3; Ex parte State, ex rel. Atty. Gen., 197 Ala. 570, 73 South. 101), transferred to the appropriate division of the circuit court, upon the filing of the instant bill or petition in such court praying restraining order, the two pending “bills” between tbe same parties, involving the subject-matter or title to tbe same lands, became one and the same cause; and it was on this theory that the temporary writ was granted. It was proper to protect the property and rights of the parties in issue, in statu quo, and to prevent an enforced change vi et armis in the status before final decree. In tbe exercise of its original jurisdiction tbe court of equity was authorized to act in the matter of granting, pendente lite, the restraining order of temporary injunction, and, if deemed expedient and right, to restore the status quo as of the time of the filing of the bill in tbe chancery court. 8 Ency. Dig. Ala. Rep. p. 717, § 24; 14 R. C. L. p. 306, § 3; 1 High on Inj. § 5a.
Affirmed.
Post, p. 263.
