Barran v. Roden, 8 Div. 730

• Decision Date: 15 September 1955
• Docket Number: 8 Div. 730
• Parties: Emmette L. BARRAN et al., d/b/a White Way Pure Milk Co. v. Jerry RODEN.
• Court: Alabama Supreme Court

Page 398

82 So.2d 398

263 Ala. 305

Emmette L. BARRAN et al., d/b/a White Way Pure Milk Co. v. Jerry RODEN.

8 Div. 730.

Supreme Court of Alabama.

Sept. 15, 1955.

Peach, Caddell & Shanks, Decatur, and Marion F. Lusk, Guntersville, for appellants.

Starnes & Starnes, Guntersville, and Beddow & Jones, Birmingham, for appellee.

LIVINGSTON, Chief Justice.

This is an appeal taken by complainants from a decree in equity sustaining a demurrer to an alleged aspect of the bill, but overruling the demurrer to the bill as a whole and to the other aspects of it.

An appeal will lie under Sec. 755, Title 7, Code of 1940, by complainants to review a decree sustaining a demurrer to an aspect of a bill in equity. Steele v. Freeman, 250 Ala. 336, 34 So.2d 139; American Life Ins. Co. v. Powell, 260 Ala. 574, 71 So.2d 872. This is not in conflict with McCary v. Davis, 257 Ala. 456, 59 So.2d 569.

Appellee moved to dismiss the appeal because of certain proceedings had after the decree on the demurrer and before the appeal was taken. Those proceedings were had on July 8, 1953, the day on which said decree was rendered. Appellee filed a full and complete answer to the bill which was not included in the transcript certified by the clerk, and, thereupon, on the same day, complainants proceeded to a hearing of said cause on testimony taken ore tenus and documentary evidence, and respondent offered evidence, all duly transcribed by the court reporter, when the cause was submitted, and upon said submission a decree was rendered. All of those proceedings are set out in the motion, but are not in the certified transcript. On that submission, the court merely made an order for a temporary injunction enjoining respondent with respect to the use of a certain storehouse, pending the further orders of the court, and denied temporary injunctive relief in other respects. No further proceedings are alleged to have occurred until August 6, 1953, when the appeal bond was approved. Thereupon, complainants filed an instrument entitled a 'plea in Suspension,' in which they prayed that further proceedings be suspended pending the decision of this court on said appeal. It is not alleged that the court made and entered an order on said prayer.

But nothing has been done in the cause since the appeal was taken so far as the motion shows. Appellee, therefore, expresses the opinion and belief that appellants waived their right to appeal from the decree on the demurrer, for that they should have appealed from such decree, if at all, 'before proceeding further in said cause and waives his right to take such interlocutory appeal by proceeding further in the cause.'

The theory on which that contention is made is in two aspects. One is where the appellant proceeds in the trial court after the appeal is taken, and the other is where he proceeds in that court after the decree and before the appeal is taken. But they both are controlled by the same reasoning. If further proceedings after the appeal would be an abandonment of the appeal, those same proceedings taken after the decree but before the appeal was taken would be an abandonment of the right to take an appeal later. The rule is stated to be that after an appeal is taken, the lower court 'may proceed in matters which are entirely collateral to that part of the case which is taken up (by the appeal) but it can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court.' This is a limitation on the rule that after an appeal is taken the trial court cannot, pending that appeal, pass upon any matter involved on the appeal. Francis v. Scott, 260 Ala. 590, 72 So.2d 93; Gibson v. Edwards, 245 Ala. 334, 16 So.2d 865, and cases cited in them.

As to those matters which are entirely collateral to the questions involved on appeal, the court and parties are free to proceed notwithstanding the appeal if taken, or without affecting the right to appeal if not then taken. 4 C.J.S., Appeal and Error, § 212(e), p. 401.

A temporary injunction operative to preserve a status pending an appeal is not unusual. Browning v. Wesco Co., 218 Ala. 544, 119 So. 660. An order is frequently made pending an appeal for the payment of temporary alimony in an exercise of discretion by the court. Ex parte Spafford, 199 Ala. 309, 74 So. 358.

Appellee's showing for a dismissal of the appeal is not sufficient to meet the requirements of the principle, and it is overruled.

On the Merits

The assignments of error relate to a decree sustaining the demurrer to an alleged aspect of the bill. The demurrer was addressed to the bill as a whole, and separately to various alleged aspects of it. The bill, briefly speaking, was by a tenant who had leased from respondent, for a period of five years, a concrete block building situated on the south side of Mill Street in Boaz, and, who, for a like period, had leased, from respondent two pak-ice machines, one located in a building at Attalla, and one located in the building on Mill Street at Boaz. Complainants had removed one pak-ice machine from Attalla to its new building at Boaz; and according to the allegations of the bill:

'Five: That on or about June 10, 1953 complainants were about to remove the other 'pak-ice' machine from the leased building on Mill Street to their new building in Boaz, when defendant invaded the leased premises and with threats of violence forbade complainants to remove said 'pak-ice' machine from said building, and declared his purpose to again invade the premises and resist with violence any effort by complainants to remove the leased machine to their own building in Boaz.

'Six: That on June 15, 1953 said defendant went to the leased premises and removed or displaced the locks on the entrance doors, and when complainants found the doors thus locked they removed the locks and continued...