Collier v. State ex rel. Powell, 8 Div. 76.

• Decision Date: 05 June 1941
• Docket Number: 8 Div. 76.
• Citation: 241 Ala. 459,3 So.2d 17
• Parties: COLLIER v. STATE ex rel. POWELL.
• Court: Alabama Supreme Court

3 So.2d 17

241 Ala. 459

COLLIER v. STATE ex rel. POWELL.

8 Div. 76.

Supreme Court of Alabama

June 5, 1941

Rehearing Denied June 30, 1941.

Appeal from Circuit Court, Morgan County; W.W. Callahan Judge.

Russell W. Lynne and S.A. Lynne, both of Decatur, for appellant.

Thos. S. Lawson, Atty. Gen., for appellee.

THOMAS Justice.

The preceeding was for the abatement of a liquor nuisance, and was instituted by a petition filed in this cause, charging the defendant Collier of violating a decree that was rendered by the Circuit Court of Morgan County, in equity, permanently enjoining Collier from continuing to maintain a liquor nuisance on premises described in the decree.

The petition prays for an order or decree forfeiting the bond executed by the defendant and his sureties and the compliance of the said permanent injunction decree and also for padlocking said premises. On October 19, 1940, the petition or motion was set down for hearing and notice of said hearing was served on the defendant and his sureties. On November 1 1940, by agreement of all the parties, the hearing was continued and was regularly and duly so continued until November 30, 1940. On said date all parties in person or by counsel were present and the defendant filed a motion to strike the said motion or petition filed on October 19, 1940 a motion to quash and abate the process requiring defendant to appear in said proceeding, and also filed a demurrer to the petition.

Thereupon the court, on motion of counsel for defendants, heard oral testimony on the motions and argument of all parties on the motions and demurrer and evidence on said motions. Before pronouncing any decree or order upon said motions and demurrer, all parties agreed in open court, to hear the cause on its merits; and each party offered record evidence and also a number of witnesses in support of the petition on its merits. At the close of the testimony it was agreed by all the parties that a submission be made to the court for an order or decree on the motions, the demurrer, and the merits of the cause presented by the petition, which was accordingly made. Thereupon the court took the whole matter under advisement for a decree thereon.

The motions and demurrer raise the same questions, namely, that there is no authority in law in a proceeding of this kind to declare forfeited the bond required in the injunction decree and that the execution of an appeal bond for costs removed the case to the Supreme Court and suspended the power of the circuit court to make any orders pending the appeal. The last named question involves the thought that the decree in this cause making the injunction perpetual, is not such a decree as requires a supersedeas bond under The Code of 1923, §§ 6132-6134. See Code of 1940, T. 7, § 793 et seq.

The circuit judge rendering the decree has retired from that court. He supported his rulings and final decrees as follows:

"This is not an independent suit on a bond to recover damages for its breach. The bond is merely incidental to and coupled with the main case, and constitutes one of the methods adopted by the court to command and enforce obedience to the decree of the court directing the defendant, Collier, to refrain from carrying on and maintaining a liquor nuisance to the detriment of good order and morals of the people of the community. The execution of the bond did not discharge or satisfy the decree, nor did it paralyze the arm of the court to enforce the decree and thereby accomplish the very purpose of the bill, suppress intemperance. The bill in this case is founded on Sections 4671-4677 of the Code of Alabama (of 1923). [See Code of 1940, T. 29, §§ 141-147]. These sections form a part of an elaborate system of laws, the avowed purpose of which is to suppress intemperance in this state. Undoubtedly the purpose of vesting the equity court with jurisdiction to abate a liquor nuisance was the recognition of its general powers to abate such matters, and to invoke the broad and liberal powers of a court of equity to assist in the suppression of the evils deemed to be conducive to intemperance. The statute, after granting power to perpetually enjoin the maintenance of such nuisance, specifically provides that 'the court shall have full power and authority to maintain its jurisdiction,' and, to do this, it further provides that the court may do this 'by all suitable orders and writs to enforce its decrees in respect to the subject matter of the suit, and to so shape and mould its decrees as to accomplish the purpose of the bill.' Then it further provides that the court may adopt 'all the rules of evidence, practice and procedure * * * that pertain to courts of equity generally.' (Parenthesis and brackets supplied.)

"Code of 1923, §§ 4675, 4676 (Code of 1940, T. 29, §§ 145, 146.)

"These sections of the Code have been quoted and approved by our Supreme Court. Ex parte Hill, 229 Ala. 501, 158 So. 531; Garrett v. State, 235 Ala. 457, 179 So. 636; (and we add the cases of Joiner v. State, 232 Ala. 522, 168 So. 885; Chandler v. State, 237 Ala. 407, 187 So. 189.) These cases approve a decree requiring a bond conditioned to abide by the decree. It is clear from both reason and authority that the bond in such cases is incidental to the case and may be enforced in that particular case. The prime thing involved is the decree forbidding the maintenance of the nuisance, and the bond is the instrument and method used by the court for its enforcement. Therefore, it must follow that the court has authority in this case to declare the bond forfeited and enforce its payment in a proceeding of this character. It amounts to no more than making further orders in the case to carry out the purpose of the decree. The court has power to make further and additional orders to the same end." (Parentheses supplied.)

The second contention of the defendants is that the injunction from which appeal was taken by giving a bond for costs, is not such a decree as requires a supersedeas bond under either of Sections 6132, 6133, or 6134, and, "Therefore, the decree was superseded by the appeal and bond for cost." See Code 1940, T. 7, §§ 793, 794 and 795.

"Clearly Section 6134 requires a supersedeas bond to suspend the decree. The first clause in this section settles this question adversely to defendant's contention. It says: 'If the judgment or decree be only for the performance of some act or duty * * * to suspend such a decree, a supersedeas bond must be executed.' That is the sole purpose of the decree in this case. It lays a duty on the defendant, Collier, to cease maintaining a public nuisance. The decree requires that and nothing else." Such is the effect of the decision by this court in Betts v. Cobb, 121 Ala. 154, 157, 25 So. 692.

In the last cited case an executor had been required by decree of the probate court to make an additional bond, and from this judgment appealed, and simply executed a bond for cost. "Pending the appeal a creditor filed a petition to have the executor removed" from his office because of his failure to execute an additional bond in compliance with the decree of the probate court. The executor made the point that the had taken an appeal. The court, in answering this contention said:

"If it be assumed that the order requiring the bond was appealable, still it could not operate to supersede the execution or enforcement of the order without a supersedeas bond. Code, § 442. When security for costs only is given, the appeal, if properly taken, suspends the power of the probate court over the judgment or order appealed from, but does not suspend its operation. In such case, 'whatever measures are necessary for the execution of the decree, it is the duty of the court, on the application of a party in interest, to pursue as if the appeal had not been taken.' "

And this court also approved said principle in Bowdoin v. Bowdoin, 225 Ala. 618, 144 So. 819, 821. We find no decision in this state in conflict with this view. " * * * The case most urgently pressed upon us is that of Garrison v. First National Bank, 233 Ala. 687, 173 So. 88. We do not think this case has any application to the question here involved. It was a case of the issuance of a writ of garnishment in aid of a pending suit. On a hearing, the court rendered a judgment quashing plaintiff's contest of the answer of the garnishee and discharged the garnishee. The plaintiff appealed from this judgment and made no supersedeas bond. Pending the appeal the garnishee paid the defendant. The case was reversed by the Supreme Court and, on remandment, the garnishee made a motion to be discharged on the ground that he had paid the defendant pending the appeal. The lower court granted the motion and, from this judgment, appeal was taken. In passing upon the matter, the Supreme Court said that the judgment on which the first appeal was taken, was not one 'only for the performance of some act or duty, and therefore, was not covered by Section 6134.' * * * " (Parenthesis supplied.)

Looking to the weight of authority in this country, it is to the effect that an appeal without a special order of the court does supersede the power of the lower court in case of prohibitory injunction to enforce obedience to the decree. Many authorities go so far as to hold that the inherent power remains in the lower court to see that such prohibitory decree will be respected "notwithstanding a supersedeas bond has been given." 4 Corpus Juris Secundum, Appeal and Error, § 632, pp. 1116, 1117 and authorities there cited; 3 Am.Jur., p. 205; High on Injunctions (4th Edition) § 1698; State or Washington v. Superior Court, 39 Wash. 115, 80 P. 1108, 1 L.R.A., N.S., 554, 109 Am.St.Rep. 862, 4 Ann.Cas. 229; Hulbert v. Portland Cement Co....