70 So. 197 | Ala. Ct. App. | 1915
The action was by the town of Dadeville, its mayor and councilmen, and by J. M. Sheesley, doing business under the name of “The Greater Sheesley Shows,” against W. H. Wynn, et al., on an injunction bond executed by defendants on
The damages claimed by the plaintiffs were for attorney’s fees paid out in defending the injunction suit, and for loss of profits from being restrained from operating or conducting said street fair. The defendants pleaded to the action the general issue; and, at the conclusion of the evidence, the court gave the general affirmative charge for the defendants, and refused it to the plaintiff, which are the only errors assigned.
It is true that, ordinarily, the dismissal of a suit in which an injunction has been issued amounts to a determination that the injunction has been improperly granted, and in such case a right of action on the injunction bond immediately accrues to the defendants in that suit (Mayor and Aldermen of East Lake v. Devore, 169 Ala. 237, 53 Eouth. 1018; Zeigler v. David, 23 Ala. 127; Bogacki v. Welsh, 94 Ala. 429, 10 South. 330; Babcock v. Reeves, 149 Ala. 665, 43 South. 21; 16 Am. & Eng. Ency. Law [2d Ed.] 456 et seq.) ; but this is not true where, as here, the decree itself shows that the adjudication was not adverse to, but in favor of, the complainants, and that the bill was dismissed merely because the injunction had fully performed its office, and at the cost of the respondents. The legal effect of the decree was merely to discharge, and not to dissolve, • the injunction (McMinn v. Karter, 123 Ala. 510, 511, 26 South. 649), and was a clear determination that the injunction had been rightfully, instead of wrongfully, issued. The plaintiffs in this action are concluded by that determination.—16 Am. & Eng. Ency. Law (2d Ed.) 458.
There are perhaps other reasons, as urged in appellees’ brief, why the court was also justified in giving the affirmative charge, but it is unnecessary to consider them.
Affirmed.