Berman v. Wreck-A-Pair Bldg. Co.

• Decision Date: 03 June 1937
• Docket Number: 6 Div. 108
• Citation: 234 Ala. 293,175 So. 269
• Parties: BERMAN v. WRECK-A-PAIR BLDG. CO.
• Court: Alabama Supreme Court

175 So. 269

234 Ala. 293

BERMAN v. WRECK-A-PAIR BLDG. CO.

6 Div. 108

Supreme Court of Alabama

June 3, 1937

Appeal from Circuit Court, Jefferson County; E.M. Creel, Judge.

Suit in equity by the Wreck-A-Pair Building Company against the Louisville & Nashville Railroad Company and Robert Berman individually and trading as the Berman Bros. Iron & Metal Company. From a decree granting temporary injunction respondent Berman appeals.

Modified and affirmed.

Amzi G Barber and Hugh Barber, both of Birmingham, for appellant.

A. Leo Oberdorfer and E.M. Zeidman, both of Birmingham, for appellee.

BOULDIN Justice.

The appeal is taken under Code, § 8307, to review a decree granting an injunction pendente lite after setting the application down for hearing pursuant to Code, § 8304.

On the hearing the respondent objected to proceeding on the ground that "at least three days' notice of the time and place of hearing" had not been given as prescribed by section 8304. The objection was disregarded, and the hearing proceeded. This ruling is presented for review.

The record discloses the bill was filed March 1, 1937, that on the same day it was presented for fiat, and was by order set down for hearing on March 3, 1937, and complainant ordered to give notice of such date, etc. Clearly this was not three days' notice.

Omitting for the present recitals in the decree deemed by the court below a sufficient compliance with the statute as to notice, we deem a clear understanding of the procedure under these statutes quite important. Appellee insists the matter of notice is discretionary, or directory merely.

Section 8304 reads:

"When a bill praying for an injunction is presented for fiat to any judge authorized to grant injunctions, he may, if in his opinion no substantial injury would result to the complainant from delay, set a time and place for the hearing of the application, not more than ten days thereafter, and may require the complainant to give the defendant or defendants to be affected by the writ at least three days' notice of such time and place and to serve them with a copy of the bill, if to be found within the state, and if the defendant or defendants cannot with due diligence be served with such notice and copy within the time prescribed, the judge may, in his discretion, on the day fixed, proceed to hear the application without notice or to continue the hearing to a future day, so that notice may be given the defendant."

This and related statutes first appeared in the Code of 1907. Theretofore temporary injunctions were issued on the sworn bill of complainant.

A motion by respondent to dissolve the injunction upon ten days' notice was authorized, Code, § 8302, an appeal from the order granting or denying the motion to dissolve was provided for, Code, § 6081.

This procedure still obtains.

Code, § 8304 et seq., provide an alternate procedure by which a hearing may be had before injunction issue, and an appeal prosecuted from the order granting or denying the application.

It is manifest the court has a discretion to adopt either procedure. If he decides to have an advance hearing, after notice he may, in his discretion, issue a temporary restraining order upon the complainant's executing bond. Section 8309. If complainant is unwilling to await the proposed hearing after notice, he may abandon his application before the judge and renew it before a justice of the Supreme Court. Section 8310. These provisions manifest a clear purpose to safeguard the complainant against irreparable injury by reason of the delay incident to a hearing after the notice prescribed by section 8304.

Again, it is clear enough that only one appeal is contemplated to review the granting or refusal of a temporary injunction. All appeals involve delays. The early settlement of such preliminary matters is important to the administration of justice.

Hence, it is provided that "When an injunction has been granted after the hearing provided for in the four preceding sections, no motion to dissolve injunction will lie as a matter of right, except for matters subsequently occurring." Section 8308. (Italics supplied.)

Among these four sections is section 8305, which reads:

"Upon the hearing of the application for injunction, the sworn answer of the defendant may be considered as well as the bill, and both sides may introduce affidavits of themselves or other witnesses; and upon consideration, the judge must determine whether the injunction be granted or refused."

Upon consideration of the whole statutory scheme, and the purposes to be attained, we conclude, that unless waived "at least three days' notice" is essential to a hearing resulting in an order from which an appeal lies under section 8307.

Notice required in judicial proceedings is of the essence of a fair administration of justice; we do not overlook the provision of section 8304 to the effect that where the effort to give the required notice has failed, the judge may, in his discretion, proceed to hear the application without notice. This means the proposed hearing under the four sections may be abandoned, and the application heard, under the alternate practice, and, if granted, subject to motion to dissolve.

The hearing on notice contemplated by section 8304 is intended to safeguard the judicial judgment in granting or refusing injunctions pendente lite; a hearing from both sides, or an opportunity through prescribed notice to be so heard. Lynne v. Ralph, 201 Ala. 535, 78 So. 889. No appeal lies from the order granting the injunction unless shown by the record to have been made, or purporting to be made, after such hearing. Greenwood v. State, 229 Ala. 630, 159 So. 91; Zimmern v. Southern Ry., 206 Ala. 69, 89 So. 171; Lee v. City of Birmingham, 221 Ala. 419, 128 So. 902; Dean v. Coosa County Lumber Co., 232 Ala. 177, 167 So. 566.

We do not think there was any waiver of the right to three days' notice. While counsel for respondent participated in the hearing, cross-examining witnesses, etc., this was after specific objection to proceeding without the required notice. The decree of the court expressly discloses such objection and motion for continuance overruled, and exception to such ruling.

This brings us to consider whether, on the whole record, respondent, appellant, did have the required notice. The decree of the court recites:

"On the 13th day of February, 1937, bill of complaint by B. Mazer, trading as the Wreck-A-Pair Building Company was filed in this Court against the above named defendants concerning the same subject matter as the subject matter of this suit, the bill of complaint in that suit and in this suit being substantially the same; that in that suit an application was made for an injunction, which was set for hearing by order made on the 13th day of February, 1937, for the 19th day of February, 1937. On that date the hearing was continued to the 26th day of February, 1937, on which day the hearing was further continued to March 3rd, 1937, at 8:30 o'clock A.M., with leave of complainant to summon witnesses.

"On the 1st day of March, 1937, the attorneys for the complainant presented bill in the above entitled cause to the Court, with an application that the same be set for hearing on the 3rd day of March, 1937, at 8:30 o'clock A.M., stating to the Court that there was a mis-description of the party complainant and that rather than attempt an amendment to the original bill, they were filing a new bill but substantially the same as the pending bill except the change of the party complainant. The Court made an order setting the hearing on the said bill and the application for injunction therein for the 3rd day of March, 1937, at 8:30 o'clock A.M., of which setting the respondents were duly notified on said 1st day of March."

It seems clear enough the court treated this proceeding as a continuation of a pending litigation, the new bill being in the nature of an amendment, properly identifying the party complainant, the hearing set for the same date as already set. While the recital does not specifically show notice had theretofore been given of the date for hearing, we think this is clearly implied, and the new order setting a day and prescribing notice was merely a renewal of the preceding order. The court could take note of the status of the cause pending before him, and his recitals are to be taken as true in the absence of record matter to the contrary. We are therefore, of opinion...