McCord v. Bridges

Decision Date10 April 1924
Docket Number7 Div. 357.
Citation211 Ala. 295,100 So. 469
PartiesMCCORD ET AL. v. BRIDGES ET AL.
CourtAlabama Supreme Court

Rehearing Denied May 15, 1924.

Appeal from Circuit Court, Talladega County; A. P. Agee, Judge.

Action on injunction bonds by J. U. Bridges and Cleve Hawkins, for the use of Cleve Hawkins, against Z. D. McCord, W. H. McCord and Jeff McCord. Judgment for plaintiffs, and defendants appeal. Affirmed.

In action on injunction bond by one restrained from cutting and hauling timber under contract, there was no error in refusing defendants' requested charges seeking to extend inquiry to lost profits, court having stated that only elements submitted were reasonable attorney's fees and market value of hire of plaintiff's idle teams and outfit.

Count A alleges that in April, 1920, plaintiff Hawkins entered into a contract with Bridges to cut into logs and haul to a sawmill timber located on lands described, at and for a stipulated price; that there was about 1,000,000 feet of timber on the lands; that plaintiff immediately provided himself with wagons, oxen, horses, etc., and entered upon the execution of his contract, handling about 225,000 feet of the timber; that on August 4, 1920, defendant filed in the circuit court his bill seeking to restrain plaintiff from cutting and removing or disposing of the timber in question, entered into a bond and procured a temporary restraining order; that on August 13, 1920, defendant executed another bond and procured a continuance of the restraining order; that an August 19 1920, defendant entered into another bond and procured a further continuance of the restraining order.

It is averred that on final hearing defendant's bill was dismissed and the restraining order dissolved.

As special damages plaintiff claims an amount incurred as attorney's fees in the litigation, and a stated sum per day during the time his teams were idle.

Count B is the same as count A, with the added averment to the effect that defendant took an appeal from the decree of the circuit court dismissing his bill, pending which appeal he procured an order from a justice of the Supreme Court reinstating the injunction, executing an additional bond therefor; that the decree of the lower court was affirmed, and the injunction dissolved; that defendant failed to pay plaintiff for the damages caused by the injunction.

The witness Stringer, after counsel had hypothesized the various steps in the litigation between the parties, the natures thereof, and the average work that could be done by Hawkins and the time he was forced to remain idle, was asked what would be a reasonable attorney's fee for Hawkins' solicitor.

These charges were refused to defendants:

"(12) The court charges the jury that, without the plaintiff has reasonably satisfied them from the evidence that the plaintiff has suffered some damage on account of the suing out of said injunction wrongfully, either on account of the loss in the carrying out of his contract with Bridges or for expenses in keeping his teams in order to carry out said contract, then the plaintiff cannot recover any damages other than for such liability as they may determine that the defendant should pay to the plaintiff for the attorney's fees in representing him in said injunction suit."
"(18) The court charges the jury if they believe the evidence plaintiff can only recover for such amount as damages as was the value of said contract during the time the same was suspended under said injunction, and, if they believe from the evidence that said contract had no value or there would have been no profits if the same had been carried through, the plaintiff cannot recover under his complaint as to this element of damage.
"(19) The court charges the jury that, if they believe from the evidence that the plaintiff in his alleged contract with Bridges which was suspended during said injunction suit would have lost money in carrying out the same, he cannot recover any damages for the said interference with carrying out said contract in regard to hauling said logs and lumber."

Knox, Acker, Dixon & Sims, of Talladega, for appellants.

Riddle & Riddle, of Talladega, for appellees.

THOMAS J.

The suit is based upon a complaint originally numbered 1, and that count was eliminated by adding counts A and B. The trial was upon the complaint as amended and the plea of the general issue.

Preliminary rulings assigned as error are the sustaining of demurrers to pleas in abatement Nos. 1, 2, 3, and 4. These pleas sought to set up the fact that when the suit was first brought on the injunction bond the case was on rehearing in this court; that there was pending another suit for damages for breach of the contract; and that the residence of defendants were in the county of Coosa rather than that where the suit was brought.

The act of September 29, 1915 (Gen. Acts, p. 880), sought to amend section 2967 of the Code of 1907, and provided, among other things, that suit may be maintained upon an injunction bond in the county where the injunction was sued out, operated, etc. The venue of the suit and operation of the injunction was Talladega county. It is insisted that the amendment of section 2967 of the Code in respects indicated was unconstitutional. The cases of State ex rel. Troy v. Smith, Auditor, 187 Ala. 417, 65 So. 942, and Ex parte Cowert, 92 Ala. 94, 100, 9 So. 225, are cited by appellants as indicating the rule of amendment of statutes by reference of their titles. It is true that when the section of the Code is sought to be amended by reference to its title the subject added by way of amendment must be germane to, suggested by, and supplemental to the subject-matter of the original section. Dodd v. Commissioners' Court, 203 Ala. 271, 82 So. 521; Ex parte Johnson, 203 Ala. 579, 84 So. 803; Smith v. Birmingham Realty Co., 208 Ala. 114, 94 So. 117. The subject-matter of the original statute (Code, § 2967) was "venue of suits on bonds," and is contained in chapter 56, art. 5, "Attachments." The amendment was of matter germane to, suggested by, and supplemental to the subject of the "venue of suits on bonds," and extended the same to suits on attachment or injunction bonds, and those of petitioning creditors, etc. Gen. Acts 1915, p. 880. The act violated no provision of organic law in so amending this statute. There was no error committed in sustaining demurrers to pleas in abatement.

The several decisions of this court as to the character of actions that may be maintained against the principal and sureties growing out of the breach of duty under an official bond or that given as a condition precedent to suing out or reinstatement of injunctions, etc., are to be found in National Surety Co. v. Citizens' L., H. & P Co., 201 Ala. 456, 78 So. 834; Williams v. Ragan, 153 Ala. 397, 45 So. 185; Britt v. Pitts, 111 Ala. 401, 20 So. 484 (action...

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7 cases
  • Rogers v. City of Mobile
    • United States
    • Alabama Supreme Court
    • July 31, 1964
    ...51 So.2d 360, cert. den. 342 U.S. 818, 72 S.Ct. 34, 96 L.Ed. 619; Davis v. City of Tuscumbia, 236 Ala. 552, 183 So. 657; McCord v. Bridges, 211 Ala. 295, 100 So. 469. The title of Act No. 880 is also sufficient. It contains an adequate summary of the new provisions being added to § 342. The......
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