Ex parte Sayre

• Decision Date: 20 June 1892
• Citation: 11 So. 378,95 Ala. 288
• Parties: EX PARTE SAYRE ET AL.
• Court: Alabama Supreme Court

11 So. 378

95 Ala. 288

EX PARTE SAYRE ET AL.

Supreme Court of Alabama

June 20, 1892

Petition by H. A. Sayre and others for mandamus commanding the chancellor to set aside an order discharging an injunction. Petition granted on condition.

Roulhac & Nathan, for petitioners.

COLEMAN J.

A bill was brought by the petitioners, as assignees of Moses Bros. and the individual members of the firm, for the purpose of restraining the defendant from selling certain real estate under a power of sale contained in a mortgage executed by M L. Moses. The order for a provisional injunction was made by the judge of the city court of Montgomery before the filing of the bill, but the writ of injunction did not issue until after the bill was filed. The defendant, after answering made a motion to dissolve the injunction on the following grounds: First, that the answer denies the material allegations of the bill; second, that the bill is without equity; third, that the judge of the city court was without jurisdiction to make an order granting the injunction at the time it was made. The chancellor, being of the opinion that the bill contained equity, and that the denials of the answer were not sufficient to dissolve the injunction, did not dissolve the injunction on either of the first two grounds, but made an order discharging the injunction on the ground that the order for its issuance, having been made when no suit was pending, was void. This proceeding is an application by the complainants for a mandamus commanding the chancellor to set aside the order discharging the injunction. By the act creating the city court of Montgomery power is conferred upon the judge "to order the issue of writs of injunction, or any other writ or process, in any and every case in which, by the existing laws, a circuit judge might order the issue of any such like writ or process." Acts 1863, p. 121. By the laws then existing judges of the circuit court had, and now have, authority to grant writs of injunction, returnable into the courts of chancery, coextensive with the power exercised by chancellors. The question, therefore, is whether the order of a chancellor granting a temporary injunction before the bill is filed is void or a mere irregularity.

The point that a restraining order, before the suit is instituted, is without authority and void, was made in Heyman v. Landers, 12 Cal. 107. This point was held to be untenable, notwithstanding a statute expressly provided that an injunction may be granted at the time of issuing the summons. FIELD, J., says: "The order could only take effect upon the filing of the complaint and the bond or undertaking required, and it was unnecessary to delay the application to the judge until after the complaint had been filed. When a restraining order or an injunction is sought upon the complaint, it is the usual practice to present the complaint, in advance of the filing, to the judge, and obtain the order on the allowance of the writ; and with this practice the statute does not conflict. The order or writ can then be issued with the summons." We have no statute regulating, expressly or impliedly, the time when an injunction may be granted. Mr. High observes: "The fact that the bill was not filed until after the injunction was ordered is not sufficient ground for a reversal of the order, such omission being at the most but a mere irregularity, which does not affect the merits of the cause." High, Inj. § 1583. And in Davis v. Reed, 14 Md. 152, it was held the fact that the bill was not filed until after the injunction was ordered is at most but a mere irregularity, which cannot operate a reversal of the order granting it. It is said: "It is not uncommon, in some of the counties, to proceed in this way. *** Where a practice has become inveterate it is better to adhere to it, until changed by a prospective rule, than to incur the risk of doing injustice to a party who may have followed it, and especially when the opposite side has not been injured by the alleged irregularity." Also, though where the application for an injunction is made by another under the English practice, the motion could only be made on some day on which the court was sitting, and is made ex parte, and before the defendant had entered an appearance, a certificate of the filing of the bill signed by one of the authorized clerks was requisite. 2 Daniel, Ch. Pl. & Pr. 1667, 1669. Yet in an urgent case an interim injunction may be granted without notice that the motion for an injunction would be made, but this authority does not go to the extent of holding that the bill should not be first filed. So in Thorneloe v. Skoines, L. R. 16 Eq. 126, an interim injunction to restrain a sale which was expected to be completed within an hour, upon the plaintiff giving an undertaking to file the bill and affidavit in the course of the day, on the ground that plaintiff did not have time to prepare a copy of the bill for filing the injunction, was granted. And in Carr v. Morice, Id. 125, where, on account of the office of the court being closed, the filing of the bill was delayed, it was held the court might grant injunction before bill filed, but in this case the chancellor filed the copy of the bill produced to...