Grooms v. Brown-Marx Co.

• Decision Date: 25 November 1938
• Docket Number: 6 Div. 412.
• Citation: 236 Ala. 655,184 So. 698
• Parties: GROOMS v. BROWN-MARX CO.
• Court: Alabama Supreme Court

184 So. 698

236 Ala. 655

GROOMS v. BROWN-MARX CO.

6 Div. 412.

Supreme Court of Alabama

November 25, 1938

Appeal from Circuit Court, Jefferson County; Robert J. Wheeler Judge.

Bill in equity by H. E. Grooms against Brown-Marx Company for injunction, etc. From a decree conditionally discharging injunction, complainant appeals.

Affirmed.

Beddow Ray & Jones, of Birmingham, for appellant.

Lange Simpson & Brantley, of Birmingham, for appellee.

THOMAS Justice.

The question presented by the appeal, under § 6081 of the Code, is the discharge of the injunction for lack of a proper bond.

The assignment of error that will be considered and determine the question is: "The Court erred in making an order requiring the complainant to file another and additional bond under pain of having the writ of injunction discharged in the absence of a motion to dissolve the injunction and a full hearing thereon."

A motion to dissolve an injunction and action thereon touches the equity of the bill, while one to discharge presents the question of sufficiency,--in this case, the sufficiency of the bond for the maintenance of the injunction. The distinction between the dissolution and the discharge of an injunction is well recognized by our long line of decisions. Rochell v. City of Florence, 182 So. 50; Jones v. Ewing et al., 56 Ala. 360; Thorington v. Gould, 59 Ala. 461; Ex parte Fechheimer et al., 103 Ala. 154, 15 So. 647.

The importance of a due maintenance of jurisdiction of courts, and the comity that obtains, where there is concurrent authority over the same questions and subject-matter, is well understood and established. It is stated generally, as follows:

"The law upon this subject has been repeatedly declared by the Supreme Court and by this court. In Lang v. Choctaw, Oklahoma & Gulf R. Co., 160 F. [ 355], 359, 360, 87 C.C.A. 311, 312, the rule was thus stated by this court:

" 'The court which first acquires jurisdiction of specific property by the lawful seizure thereof, or by the due commencement of a suit in that court, from which it appears that it is, or will become, necessary to a complete determination of the controversy involved, or to the enforcement of the judgment or decree therein, to seize, charge with a lien, sell, or exercise other like dominion over it, thereby withdraws that property from the jurisdiction of every other court and entitles the former to retain the control of it requisite to effectuate its judgment or decree in the suit free from the interference of every other tribunal. Farmers' Loan & Trust Company v. Lake Street Elevated Railroad Co., 177 U.S. 51, 61, 20 S.Ct. 564, 44 L.Ed. 667; Peck v. Jenness, 7 How. 612, 12 L.Ed. 841; Freeman v. Howe, 24 How. 450, 16 L.Ed. 749; Moran v. Sturges, 154 U.S. 256, 14 S.Ct. 1019, 38 L.Ed. 981; Central Nat. Bank v. Stevens, 169 U.S. 432, 18 S.Ct. 403, 42 L.Ed. 807; Williams v. Neely, 134 F. 1, 15, 67 C.C.A. 171, 185, 69 L. R.A. 232; Barber Asphalt Pav. Co. v. Morris, 132 F. 945, 948, 66 C.C.A. 55, 58, 67 L.R.A. 761; Gates v. Bucki, 53 F. 961, 969, 4 C.C.A. 116, 128, 129. * * * The jurisdiction of a court over a subject-matter or a cause once lawfully acquired includes the power to enforce its judgment or decree, and to protect the title of those holding under it from every attempt to avoid or annul it. Chicot County v. Sherwood, 148 U.S. 529, 533, 534, 13 S.Ct. 695, 37 L.Ed. 546; Julian v. Central Trust Company, 193 U.S. 93, 112, 24 S.Ct. 399, 48 L.Ed. 629; Wabash Railroad Company v. Adelbert College, 208 U.S. 38, 28 S.Ct. 182, 52 L.Ed. 379; Barber Asphalt Pav. Co. v. Morris, 132 F. 945, 949, 66 C C.A. 55, 59, 67, 67 L.R.A. 761; Brun v. Mann, 151 F. 145, 80 C.C.A. 513, 12 L.R.A. (N.S.) 154.'

"The foregoing rules are no longer debatable, and by them the injunctive order of the federal court must be tested." Swift v. Black Panther Oil & Gas Co., 8 Cir., 244 F. 20, 23. See, also, Ex parte Stella Burch, Ala.Sup., 184 So. 694.

As to the power of courts over granting and maintenance of injunctions, the authorities are collected in 32 Corpus Juris, § 505 and 506, pp. 310, 311. Under the statutes in this jurisdiction, the necessity and justice is recognized for a proper security from a party applying for injunction as indemnity to a defendant in the injunction against the recoverable loss sustained by the latter, by reason of the wrongful issuance and maintenance of the injunction. That is to say, that a compliance with the requirements of the statutes for bond in such case is necessary, whether it is the main or auxiliary purpose of the bill.

Such are the holdings of this court from an early date. Buckner's Adm'r v. Stewart, 34 Ala. 529; Jones v. Ewing, 56 Ala. 360; Bolling v. Tate, 65 Ala. 417, 39 Am.Rep. 5; Ex parte Fechheimer et al., 103 Ala. 154, 15 So. 647; Jesse French Piano & Oregan Company v. Forbes, 134 Ala. 302, 32 So. 678, 92 Am.St.Rep. 31; Ex parte Miller, 129 Ala. 130, 30 So. 611, 87 Am.St.Rep. 49.

In Ex parte Miller, supra, it is declared to issue an injunction "without the bond prescribed would be irregular. Thorington v. Gould, 59 Ala. 461. Whatever might be the rule, in the absence of statutory regulations on the subject, as to the time the writ becomes operative, we apprehend, under our statute, it can never be operative until the injunction bond has been executed. Such an order is conditional in its nature, and there can be no injunction, and consequently no contempt for its violation, until the bond has been given: 2 High, Inj. § 1429; 1 Beach, Inj. § 269; Winslow v. Nayson, 113 Mass. 411.

"It is furthermore held, that where an injunction has been granted, but not to take effect until a bond is executed, acts done between the time of granting the injunction and the execution of the bond, which would be violative of the writ if fully operative, do not constitute a breach of the injunction. 1 Beach, Inj. § 253." [ page 612.]

It is maintained, on well considered authorities, that the statutes have no application to injunction issued by the court to prevent the impairment and defeat the just exercise of its undoubted jurisdiction to...