Ex parte Fechheimer

• Decision Date: 22 May 1894
• Citation: 15 So. 647,103 Ala. 154
• Parties: EX PARTE FECHHEIMER ET AL.
• Court: Alabama Supreme Court

15 So. 647

103 Ala. 154

EX PARTE FECHHEIMER ET AL.

Supreme Court of Alabama

May 22, 1894

Application by Martin Fechheimer and others for a writ of mandamus to compel the chancellor to discharge an injunction. Writ denied.

On October 17, 1892, Eugene F. Enslen filed his bill in the chancery court of Jefferson county, in which he averred that on December 26, December 27, December 28, and December 29 1892, Trounstine Bros. & Co., Fechheimer, Fishel & Co. Wienman, Hirshman & Co., and Hodges Bros., in the order named, upon the respective dates stated, sued out writs of attachment against M. Nathan & Co.; that these writs were executed by the sheriff of Jefferson county by levying upon a stock of merchandise contained in the storehouse in Bessemer occupied by the said M. Nathan & Co., and proper returns of the levy of these several attachments were made by the sheriff; that one A. Klosky claimed a portion of the goods levied upon by the sheriff under these several writs of attachment, and executed a claim bond therefor with the complainant, E. F. Enslen, and one B. S. Loventhal, as sureties thereon; that the four causes, which had been previously docketed in the city court of Birmingham, were transferred to the circuit court of Jefferson county, holding at Bessemer, Ala.; and that in said last-named court, upon issue being made as to the claim of the said Klosky to some of the property levied upon under the attachments, the claim suit was tried, and judgment was rendered in favor of each of said plaintiffs in the several causes against the claimant and the property claimed by said Klosky condemned to the satisfaction of the plaintiff's judgment against said Nathan & Co., which had been previously obtained. It was further averred in said bill that each of the causes were tried in one proceeding, and that the transfer of the causes from the city court of Birmingham to the circuit court sitting at Bessemer, was not in accordance with the provisions of an act of the general assembly approved February 21, 1893, providing for such transfers, and that, therefore, the order of transfer was without authority of law and void; that the submission by the plaintiffs in the said several causes, and the claimant, to the jurisdiction of the circuit court at Bessemer was an alteration of the terms and conditions of the claim bond, on which the plaintiff was the surety, and operated to discharge the complainant from liability on said bond; that the trial of the said four causes in one proceeding, and the agreement entered into in reference thereto, were a further violation of the complainant's rights, and operated to discharge him from liability. It was also averred in said bill that, the said claim bond being returned forfeited by the sheriff, in August, 1892, four executions were issued by the clerk of the circuit court in favor of the four several plaintiffs, against the said A. Klosky, claimant, and his sureties on the claim bond; and that each of said executions was issued without authority of law, for the reasons stated above; and that the sheriff was without authority to indorse the said bonds "Forfeited," so as to claim any right against the orator. In conclusion, the complainant averred that, said executions being in the hands of the sheriff of Jefferson county, he was proceeding to enforce the same, and, unless restrained by an injunction, would levy upon, sell, and sacrifice the complainant's property to satisfy said executions. The prayer of this bill was for an injunction restraining the defendants Fechheimer, Fishel & Co., each member of said firm, their attorneys and agents, from further proceeding against the complainant, upon said executions, and from further interfering with his property, by reason of said executions, and that the complainant be decreed as released from all liability on said bond. In accordance with the direction to the register, a writ of injunction was issued upon the...