Mobile & B. R. Co. v. Louisville & N. R. Co.

• Decision Date: 17 December 1914
• Docket Number: 835
• Citation: 190 Ala. 417,67 So. 244
• Court: Alabama Supreme Court
• Parties: MOBILE & B.R. CO. et al. v. LOUISVILLE & N.R. CO.

67 So. 244

190 Ala. 417

MOBILE & B.R. CO. et al. v. LOUISVILLE & N.R. CO.

No. 835

Supreme Court of Alabama

December 17, 1914

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bestor & Young and Stevens, McCorvey & Dean, all of Mobile, for appellants.

Gregory L. & H.T. Smith and Wm. G. Caffey, all of Mobile, for appellee.

MAYFIELD J.

Appellant Mobile & Birmingham Railroad Company filed its application in the probate court of Mobile county to condemn a right of way across the track of the Louisville & Nashville Railroad Company. This application was granted by the probate court and the damages were fixed at $1,000. From this judgment the Louisville & Nashville Railroad Company appealed to the circuit court of Mobile county, where a trial de novo was had, resulting in the denial of the right to condemn the crossing. Pending the appeal to the circuit court, the Mobile & Birmingham Railroad Company executed a bond, and paid the amount of damages into court, as authorized by the statutes in such cases, and proceeded to construct the crossing. Upon the rendition of the judgment in the circuit court, the Mobile & Birmingham Railroad Company executed bond, as required by statute, and appealed to this court, and also filed this bill in the chancery court of Mobile county alleging that the Louisville & Nashville Railroad Company, its servants, agents, or officers, were about to proceed to tear up complainant's track where it crossed the track of the Louisville & Nashville Railroad Company, as constructed by complainant pending the appeal to the circuit court. The bill sought only to restrain the defendants from thus tearing up the track of complainant, as was alleged to be threatened, and was in danger of being done, unless they were restrained therefrom by the court. The chancery court, without notice, issued a temporary injunction, as prayed, but on a subsequent hearing, on application to dissolve and discharge, granted the respondent's application to discharge the injunction, from which decree this appeal is prosecuted.

We are of the opinion that the chancellor erred in discharging the injunction. It appears from the opinion of the chancellor that he misconceived both the equity and the purpose of the bill. His opinion is as follows:

"This cause coming on to be heard was submitted on motion to discharge and dissolve the injunction heretofore issued in this cause. It appears that the relief sought by the bill of complaint is to stay the judgment of the circuit court pending an appeal without allegations of any independent equity, or of any fraud, accident, mistake, or surprise in the judgment. I am of opinion the chancery court has no jurisdiction to grant such relief, and there is no equity in the bill. Clarke v. Board of Education, 76 N.J.Eq. 326, 74 A. 319; Norwood v. L. & N.R.R. Co., 149 Ala. 163, 42 So. 683. It is therefore ordered, adjudged, and decreed that the motion to discharge and dissolve the injunction heretofore issued in this cause be and the same is hereby granted, and the injunction discharged."

The bill was not one to stay the judgment of the circuit court or of any other court; it sought no relief as against that judgment or any other judgment. The sole equity of the bill was to restrain a threatened trespass, in the tearing up of complainant's railroad tracks which had been laid in accordance with the law and the statutes, until the correctness of the judgment in the circuit court could be tested by appeal, which was authorized by statute. The bill sought only to have the court of chancery, by proper injunction or restraining order, to maintain the status quo of the crossing, pending the appeal from the circuit court to the Supreme Court. This is a separate and distinct ground of equity jurisdiction, though jurisdiction for that purpose is not often invoked or exercised.

The rule is thus stated in Cyc. (volume 22, p. 825):

"The unsuccessful party, in an action at law, may be granted an injunction, where it appears that otherwise there will be such a change in the status of the subject-matter of the controversy as may render nugatory the judgment of the court of review, when announced."

Such a case we find made by this record. See, also, 1 High on Injunctions, 583; Beach on Mod.Eq.Jur. § 710.

The law on the subject is well stated in the headnote to the case of People's Traction Co. v. Central Passenger Railway Co., 67 N.J.Eq. 370, 58 A. 597:

"A litigant, against whom a cause has been finally decided in the Supreme Court, who has in good faith promptly taken a writ of error to the Court of Errors and Appeals, which he is diligently prosecuting, and who is unable to secure from any law court a restraint against such a change in the status of the subject-matter of the controversy as may make nugatory the judgment of the court of review when pronounced, has (if the matter in dispute is one worthy to be considered by

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