55 So. 1011 | Ala. | 1911
This appeal is from a decree dissolving an injunction. The cause was submitted in the lower court on respondent’s motion to dissolve the injunction ; the submission being had under a written notice, served on complainant’s solicitor. The proceeding in the lower court was had, in vacation, under section 4526 of the Code of 1907, which is as follows: “A defendant may in vacation, upon ten days’ notice to the complainant or his solicitor, move before the chancellor of the division in which the bill is filed, to dissolve an injunction for want of equity in the bill or on the coming in of an answer, or to discharge an injunction, to be heard on the original papers or certified copies thereof ; and motions to discharge and dissolve may be made and heard at, the same time, without prejudice to either.”
On the former appeal in this case (168 Ala. 469, South. 228), which was. from a final decree, the bill was held to be without equity in so far as it sought to enjoin an action at law, brought to recover the amount of the intestate’s deposit in the bank of the appellant, and also without equity in so. far as it sought to have the court to declare and enforce a lien in favor of the bank
It is therefore not shown by the bill in this case that the bank had any such lien, upon the deposit of the deceased cashier, as could be declared or enforced in this suit.
Mr. Morse, in his work on Banks and Banking, § 335, speaking of the claims of the bank against the depositor, for which it has a lien upon, or which it may set off with, his funds on deposit, says: “The claims set off must be certain, i. e., either already reduced to precise figures, or capable of being liquidated by calculation without the intervention of a jury to estimate the sum. And when the claim sought to be used as an offset requires the decision of a jury on the question of negligence before the claim is established, it cannot be offset, even though the amount of the judgment is very clear, provided there should be any judgment of the claim. As where a bond deposited as collateral for a note was lost, and in suit by the bank on the note the maker tried to offset the loss of the bond. A judgment, or contract claim, that can be sued in debt, assumpsit, or covenant, may be set off. But a demand that must be sued upon in tort, or by bill in equity, cannot be set off.”
The claim or demand sought to be set off in this suit is not within the class or classes' as to which a bank has a lien upon the deposit of its customer, or as to which it has the. right to set off such deposit. The claim
There is no pretense in this case that the depositor or his estate was insolvent, or that it would be necessary, in order to obtain satisfaction on any decree that might be rendered herein, to proceed against this deposit; nor is there any claim in the bill that .the bank had applied the amount of the deposit, or any part thereof, to the payment of any debt or demand owing by the depositor or his estate to the bank; nor is there shown any reason whatever why the action brought in a court of law to recover this deposit should be enjoined. Had it been averred that the estate was insolvent, and that the complainant’s judgment or decree against the personal representative could not be satisfied without resorting to the deposit, and that, if it were compelled to pay to the personal representative that deposit, it would lose the benefit of its judgment or decree against such representative pro tanto, there might be some reason why the action at law should be enjoined; but, in the absence of such allegation or proof, it is made to fully appear that the injunction in this case was unwarranted, and that the chancellor properly dissolved it on motion of the respondent.
A case very similar to the one at bar is that of Irvine v. Dean, 93 Tenn. 346, 27 S. W. 666. Therein a creditor of the cashier sought by garnishment to reach the deposit of the latter in the bank. The bank, in its answer, sought to hold the deposit as partial indemnity for an alleged unascertained and unliquidated claim for damages, amounting to $5,000, the result of the cashier’s
The bank in this case having no lien upon the deposit, because there was no ascertained or liquidated debt due the bank, to which it could be applied, and the estate of the depositor not being shown to be insolvent, of course there was shown no right, on the part of the complainant, to an injunction of the law suit, brought against the bank to recover this deposit; and the chancellor therefore properly dissolved the injunction on the respondent’s motion.
It is insisted by appellant that the chancellor had no jurisdiction in vacation to entertain a motion to dissolve the injunction under section 4526 of the Code; and that this case having been submitted for final decree, and such decree having been rendered, this statute does not apply, far the reason that it is intended only to enable a respondent to dissolve an injunction in advance of submission lor final decree. If injunction were the only relief sought in this bill, the argument would possibly be applicable, as the final decree would either perpetuate or dissolve the injunction. It is true that the former decree upon the final hearing would perpetuate the injunction, but on appeal from that final decree it was reversed by this court; but, for the reason set forth in the opinion on the former appeal, it was deemed impacticable for this court to render a final decree, as is usually done on appeals from such decrees.
The appellant discusses in its brief a number of other questions which were considered by this court on the former appeal, but which cannot be raised on this appeal. They might be raised on appeal from a- final decree, but not on appeal, as in this case, from an interluctory decree dissolving an injunction, except in so far as they may support or deny the right to grant or maintain the injunction.
No error appearing, the decree of the chancellor heretofore, dissolving and discharging the injunction, must be affirmed.
Affirmed.