Pennington v. Birmingham Baseball Club, Inc.

• Court: Alabama Supreme Court
• Writing for the Court: LAWSON; LIVINGSTON
• Citation: Pennington v. Birmingham Baseball Club, Inc., 277 Ala. 336, 170 So.2d 410 (Ala. 1964)
• Decision Date: 08 October 1964
• Docket Number: 6 Div. 119
• Parties: Noah M. PENNINGTON v. BIRMINGHAM BASEBALL CLUB, INC.

Page 410

170 So.2d 410

277 Ala. 336

Noah M. PENNINGTON v. BIRMINGHAM BASEBALL CLUB, INC.

6 Div. 119.

Supreme Court of Alabama.

Oct. 8, 1964.

Rehearing Denied Jan. 14, 1965.

Weir & Shannon, Birmingham, for appellant.

Rogers, Howard, Redden & Mills, Birmingham, for appellee.

LAWSON, Justice.

This appeal is from a decree of the Circuit Court of Jefferson County, in Equity, overruling a motion to discharge and dissolve a temporary injunction.

Birmingham Baseball Club, Inc., a corporation, filed its bill against Carpenters Union, Local No. 103, an unincorporated association, and against Carpenters District Council, an unincorporated association, seeking an injunction forbidding picketing.

Upon presentation of the verified bill, a judge of the Circuit Court of Jefferson County, in Equity, ordered the issuance of a temporary injunction conditioned upon the complainant executing a bond in the amount of $1,000. The bond was executed, approved and filed and a temporary injunction was issued.

The respondents filed a motion styled 'Motion to Discharge and Dissolve.' This motion was set for hearing.

Subsequently, the complainant amended the stating part of its bill and also amended the bill by adding as respondents Birmingham Building and Construction Trades Council, an unincorporated association, and Noah M. Pennington.

A temporary injunction was issued and served on the respondents added by the amendment.

The complainant again amended the stating part of its bill. The respondents who were added by amendment, thereafter, filed a motion styled 'Motion to Discharge and Dissolve.' This motion was set for hearing on the same day as was the motion filed by the original respondents.

The motions to 'Discharge and Dissolve' were submitted upon the pleadings and affidavits filed by the parties. None of the respondents filed an answer.

The trial court rendered a decree overruling 'the separate and several motions of the respondents to dissolve and discharge the temporary injunction.' From that decree the respondent Noah M. Pennington appealed to this court.

The register gave notice to the other respondents to appear before this court and unite in the appeal if they desired to do so. § 804, Title 7, Code 1940. They have appeared here and have separately and severally assigned errors. See New Morgan County Building and Loan Association et al. v. Plemmons, 210 Ala. 16, 97 So. 46. There was no necessity for an order of severance in the assignment of errors. The errors assigned are of separate prejudices and they are separately and severally assigned. See Maya Corp. v. Smith, 240 Ala. 371, 199 So. 549.

Under the statutes (§ 1052, Title 7, Code 1940), the filing of a motion to dissolve an injunction does not waive a previously filed motion to discharge the injunction. The two motions may be made and considered at the same time, without prejudice to either. Barnett v. State ex rel. Simpson, 235 Ala. 326, 179 So. 208. It would be the better practice to file two separate motions to save the court from having to determine which of the grounds go to the discharge of the injunction and which seek its dissolution. But a motion such as was filed in this case need not be ignored simply because it is styled 'Motion to Discharge and Dissolve.' The grounds of the motion must be considered in the light of the distinction which has been made between a motion to discharge and a motion to dissolve. If there are grounds in the motion entitling the movant to have a temporary injunction discharged, then a decree to that effect should be entered. If there are no such grounds but the motion contains grounds sufficient to justify a dissolution of the injunction, it should be so decreed.

As we have indicated, submission in the trial court was on the pleadings and on affidavits filed by the parties. In the briefs filed here much reliance is placed on the averments of the affidavits, none of which were made exhibits to the amended bill. The appellee, the complainant below, relies upon the affidavits filed by it in support of the trial court's action in refusing to discharge or dissolve the temporary injunction. The appellant, and the other respondents below who have joined in the assignment of errors, insist that the affidavits filed by them contain averments which should have led the trial court to discharge or dissolve the injunction. We will hereinafter refer to the respondents below as the appellants although, as we have shown, only one of them actually appealed.

The question is presented as to whether the averments of the several affidavits may be considered by us in passing on the action of the trial court in refusing to discharge or dissolve the injunction.

Section 1061, Title 7, Code 1940, provides:

'Upon the hearing of motion to dissolve an injunction, the court may consider the sworn bill and answer, whether the answer contains denials of the allegations of the bill or independent defensive matter, and also such affidavits as any party may introduce.' (Emphasis supplied)

The provision quoted above first appeared in the Code of 1907 as § 4535. In Nelson v. Hammonds, 173 Ala. 14, 55 So. 301, we said:

'* * * Previous to this statute [§ 4535, Code 1907] on motion to dissolve injunction affidavits were receivable, in certain exceptional cases, in refutation of the denials of an unequivocal, full, specific, sworn answer--Barnard v. Davis, 54 Ala. 565; Harrison v. Maury, 140 Ala. 523, 37 South. 361, among others. One of these exceptions was where waste was a probability if restraint of the adversary was not enforced. The cited statute entirely changes this rule by rendering serviceable upon the issue of dissolution vel non in all cases evidence consisting of the bill, the answer, whether it carries denials of the bill's averments of fact or not, and 'affidavits' introduced by any party. The feature of the earlier rule in respect of largely conclusive character of the sufficient denials of the sworn answer cannot consist with the practice established by the statute quoted. It is hence abrogated; and with the overthrow of the rule of practice in that particular must, of course, go any influence otherwise to have been accorded decisions illustrating the now abrogated rule of practice. The full consequence of the change, as wrought by the statute, is not now attempted to be described.

'It will suffice to say at this time that conclusions for or against dissolution of injunctions will and must under the statute be treated here on review as any other finding of fact at equity upon a defined issue. This interpretation of the quoted statute accords with that provided in the feature of the system where the hearing is to determine the issuance vel non of an injunction. Code, §§ 4528, 4529.' (173 Ala. 19-20, 55 So. 302-303)

All the cases which have come to our attention wherein this court has held that affidavits authorized by § 1061, Title 7, supra, are properly considered in concluding for or against the dissolution of injunctions, are cases wherein an answer had been filed. The contents of the affidavits were considered in connection with the factual issue presented by the bill and answer.

We hold that affidavits may not be considered where there is no answer and where the sole question presented is the sufficiency of the bill as attacked by a motion to dissolve, for such a motion confesses the averments of the bill, whether well or ill pleaded, and in the absence of an answer lies only where there is a want of equity in the bill. Woodward v. State, 173 Ala. 7, 55 So. 506; Auto Mut. Indemnity Co. v. Moore, 235 Ala. 426, 179 So. 368; Burch v. Burch, 231 Ala. 464, 165 So. 387. See Town of Clio v. Lee, 199 Ala. 145, 74 So. 243. A motion to dissolve an injunction is somewhat similar to a demurrer for want of equity in a bill and, of course, affidavits not made exhibits to a bill could not be looked to to determine the sufficiency of the bill as against the demurrer interposed.

Section 1061, Title 7, supra, does not apply to motions to discharge injunctions and consequently the affidavits certainly may not be considered in passing on the question as to whether or not the trial court erred in refusing to discharge the injunction.

Before considering the several grounds of the motions to 'Discharge and Dissolve' we will summarize the averments of the bill as amended.

Complainant is an Alabama corporation which operates a professional baseball team known as the Birmingham Barons, which is a member of the Southern League and engages in baseball contests with other teams in that league.

The respondents, Carpenters Union, Local No. 103, and Carpenters District Council, are labor organizations, commonly called labor unions, which engage in the activity of representing their members, who are carpenters, in dealing with employers. The respondent Birmingham Building and Construction Trades Council is a labor organization which has among its membership labor unions and individuals who are engaged in the crafts associated with the building and construction industry. The respondent Noah M. Pennington is the president of Birmingham Building and Construction Trades Council.

Approximately one half of the games played by complainant's baseball team are played in Birmingham. The public is invited to attend the games upon the payment of an admission charge.

Complainant occupies a baseball field known as Rickwood Field, which it leases from the owner. Complainant has exclusive possession of Rickwood Field.

The 1964 baseball season began on April 17, 1964. Some time prior to that date the owners of Rickwood Field caused certain repair, renovation and maintenance work to be done on the stadium. Such work was done by carpenters and workmen from other crafts and trades, none of whom were represented by the respondents. All of the persons engaged in the repair, renovation and maintenance work were employed individually and directly, on a daylabor basis by...