Salmon v. Salmon

60 So. 837 | Ala. | 1913

DOWDELL, C. J.

The appeal in this case is prosecuted from the decree of the chancellor dissolving a temporary injunction. The purpose of the bill was to enjoin interference by the respondent, the appellee, with the carrying on of a business in the buying and selling of drugs by the complainant. The cause was heard on the motion to dissolve the injunction on the bill which was sworn to, and on the SAVorn ansAver to the bill denying the material allegations, and upon ex parte affidavits on both sides.

Section 4535 of the Code of 1907 provides as folio avs: “Upon the hearing of motion to dissolve an injunction, the court may consider the SAVorn bill and ansAver, Avhether the answer contains denials of the allegations of the bill or independent defensive matter, and also such affidavits as any party may introduce.”

The SAYorn ansAver of the respondent set up the fact that the respondent was a partner in the business, and the weight of the evidence Avas in respondents favor on this issue. We think there can be little or no doubt that a partnership existed bet-Aveen the complainant and respondent.

One partner lias no right to exclude the other from the partnership business against the latter’s will.—Harris v. Harris, 132 Ala. 208, 31 South. 355; 2 Bates’ Partnership, 591. A court of equity will not lend its aid by injunction to one partner to exclude another partner from the partnership business. In the case of Roy v. Henderson, 132 Ala. 175, 31 South. 457, it was held that a ternjiorary injunction was improper on a bill by cotenants against another cotenant alleging an ouster of complainants from enjoyment and possession of their interest in the joint property, and a fortiori to exclude one by injunction from the enjoyment of his rights and interests in joint property would be still more improper.

The conclusion of the chancellor Avas that a partnership existed between the complainant and respondent in the business, and in this conclusion we concur, and his decree dissolving the temporary injunction avüI be here affirmed.

Affirmed.

McClellan, Sayre, and Somerville, JJ., concur.