Bush v. Kirkbride

• Decision Date: 13 November 1901
• Citation: 131 Ala. 405,30 So. 780
• Parties: BUSH v. KIRKBRIDE ET AL.
• Court: Alabama Supreme Court

30 So. 780

131 Ala. 405

BUSH v. KIRKBRIDE ET AL.

Supreme Court of Alabama

November 13, 1901

Appeal from circuit court, Mobile county; Wm. S. Anderson, Judge.

Action by Edwin B. Kirkbride and others against J. Curtis Bush. Judgment for plaintiffs, and defendant appeals. Affirmed.

This was an action in which the plaintiff sought to recover $250 for the breach of the conditions of an injunction bond made by the defendant on March 14, 1900, which bond was payable to plaintiffs and one Delchamps, in the sum of $1,000, and conditioned for the payment of all damages which any person might sustain by the suing out of a certain injunction which the said J. Curtis Bush had prayed for and obtained against the plaintiffs. The defendants pleaded the general issue and the trial was had upon issue joined on this plea. On the trial the following facts were disclosed: On March 14, 1900 J. Curtis Bush, describing himself as a citizen and taxpayer of the city of Mobile filed a bill in the chancery court of Mobile county against the said Edwin B. Kirkbride, A. S Lyons, H. T. Inge, C. W. Bush, and others, the plaintiffs in the present suit. It was averred in this bill that the respondents thereto were on March 1, 1897, elected as members of the general council of the city of Mobile, and qualified as such officers of said city on March 15, 1897; that their term of office was for three years; that the general council of said city so elected in March, 1897, at its first meeting after its members had qualified, proceeded to elect the municipal officers of the city of Mobile, which under the charter of said city were elected by the general council, and that these officers so elected were to hold office for three years, and until the third Monday in March, 1900. It was then averred in said bill that the defendants, whose term of office expired on March 19, 1900, at 12 o'clock noon, in contravention and violation of the charter of Mobile were attempting to elect the officers of said city before the then general council retired from office; that, in accordance with the intention to so elect said officers, said general council had met on March 7, 1900, and adjourned until March 12, 1900 that on March 12th, they had adjourned until March 14th, at 7 o'clock p. m. After averring that the election so attempted to be held, if permitted, would be in violation of the charter of the city, and in contravention of the custom which had long existed, the complainant in said bill prayed for an injunction to be issued restraining the defendants, as members of the general council of the city of Mobile "from proceeding at said meeting to be held on March 14 1900, at 7 o'clock p. m., or at any other meeting whether in the day or at night, intervening between said March 14, 1900, at 7 o'clock p. m., and March 19, 1900, both of said dates inclusive, to elect any officer or employés for the city of Mobile, elective by the general council of said city." Upon this bill being presented to the judge of the Thirteenth judicial circuit, he ordered that upon the complainant entering into a bond for $1,000, conditioned as required by law, an injunction should be issued, granting the prayer of the bill. The complainant in said bill executed the bond for the injunction which is here sued upon, and thereupon the writ of injunction was issued out of the chancery court on March 14, 1900, was served upon the respondents to said bill, who are the complainants in the present suit, and enjoined them, as members of the general council of the city of Mobile, from proceeding at any time from March 14, 1900, to March 19, 1900, at noon, to the election of any officers for the city of Mobile which were to be elected by the general council of said city. On March 16, 1900, the defendants, through their attorney, filed a motion to discharge the injunction. Notice of this motion was duly served, and service accepted by the solicitor for the complainant. On March 19, 1900, at 12:50 o'clock p. m., the solicitor for the complainant in said bill made a motion, addressed to the register of the chancery court, to dismiss said...