Ingram v. Erwin

• Decision Date: 28 January 1976
• Citation: 57 Ala.App. 408,329 So.2d 99
• Parties: F. R. INGRAM v. George ERWIN, Individually, et al., Civ. 588.
• Court: Alabama Court of Civil Appeals

Page 99

329 So.2d 99

57 Ala.App. 408

F. R. INGRAM v. George ERWIN, Individually, et al.,

Civ. 588.

Court of Civil Appeals of Alabama.

Jan. 28, 1976.

Rehearing Denied Feb. 25, 1976.

Erskine R. Lindsey, Birmingham, for appellant; F. R. Ingram, pro se.

Thomas Reuben Bell, Jerry L. Fielding, Sylacauga, for appellees.

HOLMES, Judge.

The Circuit Court of Shelby County sitting without a jury assessed damages of $7,000 against F. R. Ingram, representing money owed by him to George Erwin. Ingram prosecutes this appeal from that judgment.

The dispositive issues presented for this court's consideration are whether Tit. 7, § 1054, Code of Ala.1940, entitled appellant Ingram to notice prior to a hearing on an injunction; whether at that hearing Ingram should have been awarded possession of the construction machinery involved in this lawsuit; and whether under the law and the evidence appellee Erwin was entitled to the warehouseman's lien and the $7,000 in damages which were awarded to him.

The tendencies of the evidence as revealed by the record are as follows:

Erwin is primarily a mechanic operating an equipment repair establishment. In 1969, Ingram turned over various pieces of construction equipment to Erwin for repair. During the latter part of that same year, Ingram purchased a tractor and lowboy trailer and assigned them to Erwin, who was to do repair work on them also. While it is certain that Erwin was to repair both the construction equipment and the tractor-trailer unit, the evidence was in sharp conflict as to what other business arrangements existed between the parties concerning the equipment and the unit.

In January of 1971, Ingram repossessed the tractor and low-boy, which he later sold. At that time, pursuant to an agreement between the two individuals, Ingram apparently owed Erwin approximately $2,800 for repairs performed on the tractor and low-boy.

Ingram subsequently attempted to remove the construction equipment from Erwin's premises, where they had remained since placed there in 1969. Erwin refused to allow their removal, and Ingram instituted an action in detinue for their recovery, together with a claim of money damages for his loss of their use and for their conversion.

A hearing was held on the detinue action pursuant to Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed.2d 556, 92 S.Ct. 1983. At that hearing, Ingram was formally served with an equity bill in which Erwin claimed a warehouseman's lien for storage charges on the aforementioned construction equipment. Erwin's equity bill further prayed that Ingram be enjoined from prosecuting his detinue action until the merits of Erwin's claim could be determined. The trial judge then and there took testimony and considered the equity complaint. Ingram was then enjoined from further prosecution of his detinue action as prayed for by Erwin, and the two lawsuits were later consolidated for trial.

Ingram's detinue claim was denied. The trial judge, as noted above, upon conclusion of the consolidated trial, awarded $7,000 in damages and a warehouseman's lien to Erwin, from which judgment Ingram appeals.

Ingram initially assigns error in that he did not receive three days' notice of the hearing on the temporary injunction pursuant to Tit. 7, § 1054, Code of Ala 1940. That code section, which was in effect at the time of this trial, provides as follows:

'When a bill praying for an injunction is presented for fiat to any judge authorized to grant injunctions, he may, if in his opinion no substantial injury would result to the complainant from delay, set a time and place for the hearing of the application, not more than ten days thereafter, and may require the complainant to give the defendant or defendants to be affected by the writ at least three days' notice of such time and place and to serve them with a copy of the bill, if to be found within the state, and if the defendant or defendants cannot with due diligence be served with such notice and copy within the time prescribed, the judge may, in his discretion, on the day fixed, proceed to hear the application without notice or to continue the hearing to a future day, so that notice may be given the defendant.'

We initially note that this statutory provision has been superseded by the new Rules of Civil Procedure, and is no longer of force and effect.

The language of § 1054 concerning notice is obviously not cast in mandatory terms. This construction is buttressed by the cases of Lukes v. Alabama Power Co., 257 Ala. 590, 60 So.2d 349; and Berman v. Wreck-A-Pair Bldg. Co., 234 Ala. 293, 175 So. 269, which hold that notice and a hearing are not required by § 1054 but are within the sound discretion of the trial court.

Additionally, we observe that the hearing on the injunction was held contemporaneously with a preliminary detinue hearing on the same subject matter as that covered by the proposed injunction. Ingram, the party to be enjoined, was present at...