Lynne v. Ralph
| Decision Date | 11 April 1918 |
| Docket Number | 8 Div. 72 |
| Citation | 78 So. 889,201 Ala. 535 |
| Parties | LYNNE v. RALPH. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
Bill by W.G. Ralph against W.E. Lynne. From a decree granting an injunction pendente lite, defendant appeals. Affirmed.
Callahan & Harris and Wert & Lynne, all of Decatur, for appellant.
Sample & Kilpatrick, of Cullman, for appellee.
This appeal is from the action of the circuit judge in granting an injunction pendente lite after hearing as provided in Code §§ 4528, 4529, 4531. The review is, of course, confined to this particular action of the circuit judge.
The appellee filed a bill against the appellant, invoking the injunctive powers of the court to remove an obstruction from a way alleged in the bill to be a public road. Under the averments of the bill neither its equity nor the peculiar character of the injury suffered by the complainant in consequence of the obstruction of the way (if a public highway) is debatable. In accordance with the practice established in the above cited statutes a hearing was had and the mandatory writ was ordered issued pending the determination of the cause. The submission was had upon the original bill and amendments, and on affidavits presented by the respective parties. There was no answer on file at the time the hearing was had to determine whether or not the judge would grant the temporary writ. It is suggested that an answer is essential under the provisions of Code, § 4529, in order, first, to define the issues between the parties second, to avoid a confession of the matters of fact alleged in the bill; and, third, consequentially, to entitle the respondent to offer and have considered affidavits in refutation of the complainant's claim to the granting of the writ.
Such is not the case under the practice established by these statutes. According to the provisions of Code, § 3107, a defendant has 30 days after the service of the summons or perfection of the publication in which to answer a bill in equity. There is no intimation in sections 4528 and 4529 of the Code that the lawmakers intended to shorten, in any event, the period provided in section 3107 in which a defendant may plead, answer, or demur. The hearing contemplated in sections 4528, 4529 is intended to safeguard, in cases within their purview, the judicial judgment in granting or refusing injunctions; the issue to be determined being mainly one of fact, where the bill possesses equity. McHan v. McMurry, 173 Ala. 182, 55 So. 793; Nelson v. Hammonds, 173 Ala. 14, 55 So. 301.
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...bond of indemnity, with or without notice, as warranted by the facts, and prior to the filing of answer. Section 8304, Code; Lynne v. Ralph, 201 Ala. 535, 78 So. 889; Kirk v. McTyeire, Mayor, et al., 209 Ala. 125, So. 361. It is the general rule that, unless some recognized ground of equita......
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...the city of Birmingham, rather than individual or vice versa, is immaterial under the new practice prescribed by Code 1907 (Lynne v. Ralph, 201 Ala. 535, 78 So. 889), was a radical departure from or great abbreviation of the old English practice. 3 Doull, Ch. Pr. 1894 et seq.; Sims, Ch. Pr.......
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Ingram v. Erwin
...refusing injunctions pendente lite; a hearing from both sides, or an opportunity through prescribed notice to be so heard. Lynne v. Ralph, 201 Ala. 535, 78 So. 889. No appeal lies from the order granting the injunction unless shown by the record to have been made, or purporting to be made, ......