McMinn v. Karter
| Decision Date | 30 June 1899 |
| Citation | 26 So. 649,123 Ala. 502 |
| Parties | MCMINN v. KARTER. |
| Court | Alabama Supreme Court |
Appeal from chancery court, Cullman county; William H. Simpson Chancellor.
Bill by James A. McMinn against Mary B. Karter. A demurrer to the amended bill was sustained, and complainant appeals. Reversed.
The bill in this case was filed to enjoin the threatened injuries to a party wall. The report of the case on the former appeal from a decree dissolving a preliminary injunction, discloses the state of facts alleged in the bill as originally filed. McMinn v. Karter, 116 Ala. 390, 22 So. 517. After the remandment of the cause on the former appeal, the bill was amended.
J. B BROWN, W. T. L. Cofer, and Richard W. Walker, for appellant.
S. T Wert, Will G. Brown, and T. M. Wilhite, for appellee.
This cause has been heretofore in this court, on appeal from an order dissolving the injunction. 116 Ala. 390, 22 So. 517. On the bill, answer, and affidavits, our opinion then was that the injunction was properly dissolved, but the decree was reversed because the chancellor allowed an amendment of the verification of the answer after the cause had been submitted on motion to dissolve. We entertained some doubt at that time whether the bill showed that the respondent was about to join the building she was erecting to this party wall in a way to seriously weaken and impair the wall, and by incisions into it which were unnecessary to a proper and secure junction of her building onto the wall. Since then the bill has been amended in this respect, and it is now made to appear by its averments that at the time of the filing of the original bill the respondent was proceeding to erect a building on her adjoining lot and against this party wall, making said wall a part of her building, and intending and proceeding to cut numerous holes in said wall for the sleepers and joists of her house, instead of resting the same on ledges or shoulders left on that side of the building, as, indeed, on the other, for that purpose, and anchoring the same by rods extending through the wall, as had been done by complainant on the other side, and that a perfect mechanical juncture, substantial, strong, and safe, and be made by the use of said ledges and anchors; that the complainant had in that way made such juncture of his much larger and heavier building; that such juncture on respondent's part would not at all impair or weaken the wall as a party wall, but that a juncture formed in the mode proposed by the respondent, and which she was proceeding to make, would greatly and irreparably impair and weaken the wall, and greatly endanger complainant's building, which depended upon it both for vertical and lateral support. And the particular manner in which respondent was proceeding to cut into the wall, the size and number of the holes she was about to make, their distance apart, and the details of the injury they would work to the wall, etc., are averred in the bill. So that it is now made to clearly appear by the bill that the respondent was proposing and proceeding to deal with and join onto the party wall in an unnecessary, wrongful, and most injurious manner, violative of complainant's rights in the wall, and threatening irreparable damage to his building. So that if the facts alleged in the bill as existing at the time the original bill was filed are true, as is admitted for the purposes of this appeal by the motion to dismiss for want of equity and the demurrer, in our opinion the complainant is entitled to the injunctive relief prayed for, unless the case made by the bill is emasculated of equity by the allegation in the amended bill "that since the filing of the original bill in this case the respondent has completed her said building, and has formed a good mechanical juncture to said party wall, without cutting into the same in any manner, and is enjoying all the benefits and supports of said party wall to her said building." The chancellor was of opinion that this averment took out of the bill any equity there may have been in it originally, and he sustained the motion to dismiss for the want of equity and the demurrer largely upon this ground; saying in the decree that "the court is of the opinion that there is no ground of equitable relief stated in the amended bill, especially as it is averred in the seventh paragraph thereof that the 'respondent has completed her said building,"' etc.,-setting out the averment quoted above.
We think this...
To continue reading
Request your trial
-
Willis v. Buchman
...to consider the case on its merits and administer justice in the light of facts existing when the controversy arose. McMinn v. Karter, 123 Ala. 502, 26 So. 649; Empire Coal Co. v. Bowen, 195 Ala. 348, 70 So. No case has been cited, and after search I have found none, that holds, the adverse......
-
Fegers v. Pompano Farms
...v. Jones, 78 Ala. 398; Turner v. Wilkinson, 72 Ala. 361; Denby v. Mellgrew, 58 Ala. 147; Downs v. Hopkins, 65 Ala. 508; McMinn v. Karter, 123 Fla. 502, 26 So. 649; Karter v. Fields, 130 Ala. 430, 30 So. Williams v. Noland, 205 Ala. 63, 87 So. 818; Brown v. Scott, 87 Ala. 453, 6 So. 384; and......
-
State ex rel. Bailes v. Guardian Realty Co.
...the part of Blumberg, the tenant, destroy the equity of the bill as to him. Gillespie v. Gibbs, 147 Ala. 449, 41 So. 868; McMinn v. Karter, 123 Ala. 502, 26 So. 649. We fully persuaded that this self-serving action on the part of Blumberg was taken in an effort to avoid an injunction, and t......
-
Town of Dadeville v. Wynn
... ... The legal ... effect of the decree was merely to discharge, and not to ... dissolve, the injunction (McMinn v. Karter, 123 ... Ala. 510, 511, 26 So. 649), and was a clear determination ... that the injunction had been rightfully, instead of ... ...