Persons v. Summers

• Decision Date: 14 March 1963
• Docket Number: 1 Div. 44
• Parties: E. C. PERSONS v. S. W. SUMMERS et al.
• Court: Alabama Supreme Court

Page 210

151 So.2d 210

274 Ala. 673

E. C. PERSONS v. S. W. SUMMERS et al.

1 Div. 44.

Supreme Court of Alabama.

March 14, 1963.

Lyons, Pipes & Cook, Mobile, for appellant.

Howell, Johnston & Langford, Mobile, for appellees.

MERRILL, Justice.

This appeal is from a decree granting a permanent injunction against appellant, the Recorder of the City of Prichard.

Appellees are in the bail bond business in Prichard and they filed their bill against appellant in his official capacity as recorder, charging that appellant was discriminating against them and favoring their competitors. Of the 1308 bonds made by professional bondsmen in Rocorder's Court in Prichard from July through December, 1961, appellees were sureties on 930, and their competitors were sureties on 378 bonds.

The bill sought a mandatory injunction directed to appellant to set aside an order made on January 3, 1962, in which appellant ordered forfeitures of appellees' bonds amounting to $4200, a restraining order enjoining appellant from acting as Recorder of the City of Prichard until a hearing on the temporary injunction, enjoining appellant from discriminating against appellees and for general relief.

When the bill of complaint was presented to the trial court, he ordered the issuance of a mandatory injunction to set aside the order of forfeiture on the bonds and enjoined appellant from acting as recorder.

Appellant filed motions to discharge and dissolve and a sworn answer to the bill which denied any discrimination. The answer gave as one of the reasons for forfeiting the bonds that there was an ordinance of the City of Prichard requiring that when there was any forfeiture to be entered on an appearance bond and no notation was made on the bond itself that no more than $3.00 for each hundred collars penal sum of said bond was charged for the making of the bond, then the recorder must forfeit the bond for the full amount thereof; and the bonds forfeited did not have such notation on them, making it mandatory for appellant to forfeit the full amount of the bonds.

After a hearing, the court overruled the motions to discharge and dissolve, held the bond forfeitures to be void, enjoined the recorder from acting on said bonds, and permanently enjoined appellant from discriminating against appellees.

Appellant insists under proper assignments of error that the court erred in granting a permanent injunction when the hearing was on the issuance of a temporary injunction, and that there was error in the decree because the amount of the injunction bond was not fixed.

The granting of a permanent injunction on an application for temporary injunction, as was the case here, was held to be reversible error in Methvin v. Haynes, 254 Ala. 58, 46 So.2d 815.

Title 7, § 1059, Code 1940, provides for the giving of a bond before the issuance of a temporary restraining order, and an order made under the statute, without a bond, is erroneous. Francis v. Scott, 260 Ala. 590, 72 So.2d 93; Loop National Bank v. Cox, 255 Ala. 388, 51 So.2d 534.

Appellees concede that the decree 'is erroneous insofar as said decree fails to fix an injunction bond and also indicates that it is a permanent injunction,' but argue that we may modify and correct the decree on appeal. In view of our holding, we do not discuss this contention of appellees.

The court erred in permitting amendments to the bill by interlineations on the original bill. The first sentence of Equity Rule 28, subd. 1(a) reads: 'Amendments of bills and answers shall be made on a separate piece of paper.' The reasons for this rule are abvious. When a pleading is filed in court, it should not be changed or altered. Any change or alteration should be shown by a separate piece of paper. Interlineations could possibly require the overruling of a demurrer, when without them it should be sustained. And on review, this court does not see the original pleadings, but as they are copied in the transcript. It is imperative that each amendment be on a separate piece of paper so that it clearly shows at what stage of the proceeding the amendment was made.

Appellees cite the case of Fellows v. Burkett, 219 Ala. 601, 122 So. 808, to justify the interlineations. That case was decided in 1929, and under Chancery Rule 39, Code 1923, which provided that amendments 'of a brief character * * * may be made by an interlineation or erasure, * * *.' This rule has been superceded by Equity Rule 28.

The court also erred in permitting a newspaper article which described the judicial actions of appellant into evidence. The article was hearsay and objection to its introduction should have been sustained. Nashville, Chattanooga and St. Louis Ry. Co. v. Yarbrough, 194 Ala. 162, 69 So. 582; Mobile County v. Sands, 127 Ala. 493, 29 So. 26, 27; 20 Am.Jur., Evidence, § 964.

The motion to discharge raised the point that City of Prichard was an indispensible party and that its substantial rights were affected and it should have been made a party. It was error to continue the injunction in view of the grounds raised in the motion to discharge and the sworn answer.

Title 7, § 1063, Code 1940, provides:

'No temporary restraining order or temporary injunction shall ever issue to any municipality of this state, its officers, agents or employees, enjoining or restraining the enforcement of any ordinance of such municipality, whether valid or invalid, or any proceedings thereunder, until a time and place have been set for the hearing of the application for such temporary restraining order or temporary injunction, and notice of such time and place, together with a copy of the bill, has been served upon the mayor or other chief executive officer of such municipality at least twenty-four hours prior to the time set for such hearing.'

The Code section was specified in the motion to discharge and the ordinance was pleaded in the answer. The proceeds of the bond forfeitures belonged to the city and the answer showed that appellant was following the ordinance passed by the city.

A mandatory injunction should not be granted which would interfere with the rights of the City of Prichard without making it a party to the bill. Green v. Messer, 243 Ala. 405, 10 So.2d 157.

The trial court erred in removing or suspending appellant from his office as recorder for the city. The mandatory injunction ordered that 'pending said hearing a restraining order be issued enjoining and restraining the Respondent, E. C. Persons, from farther acting as Recorder for the City of Prichard.' Appellees argue this was a suspension and not a removal. In the instant case, we fail to find the authority for the trial court to do either.

The recorder is a person authorized to hold municipal court and is elected by the council, Tit. 37, §§ 582, 583, 406, and as such, is a municipal officer. Tit. 37, § 451, Code 1940, provides:

'Any person appointed to office in any city or town may, for cause, after a hearing, be removed by the officer making the appointment. The city council may remove, by a two-thirds vote of all those elected to the council, any such person for incompetency, malfeasance, misfeasance, or nonfeasance, in office and for conduct detrimental to good order or discipline, including habitual neglect of duty, in the several departments.'

We have held that this section calls for notice and hearing in removal cases. State ex rel. Reeves v. Thompson, 211 Ala. 429, 100 So. 756. The temporary restraining order in this cause removed or suspended appellant from office without notice or hearing.

It is within the legislative competency to prescribe how and by whom the judge of an inferior court of statutory creation shall be selected, and if the method is not specifically stated, the appointing power may choose its own method of appointment, and its action is not subject to review by the courts except for fraud. State ex rel. Coffin v. Hamilton, 225 Ala. 79, 142 So. 71.

'A judge can be removed only by an authority on whom the power of removal has been conferred by law.' 48 C.J.S. Judges § 27a, p. 975. The legislature has put the removal of the recorder in the city governing body and that body has the power of removal. Appellees had sought his removal by the council, but they had not seen fit to do so.

The trial court did not have the power to suspend or remove the recorder. The mere fact that circuit courts have the power to 'exercise a general superintendence over all inferior jurisdictions,' Tit. 13, § 126(3), Code 1940, does not give the circuit court power to remove or suspend judges of inferior jurisdictions by temporary injunctions.

Thus far, we have considered errors committed during the proceedings or in the decrees. We now consider the equity of the bill. A bill without equity will not support an injunction of any character under any circumstances. Wallace v. Lindsey, 270 Ala. 401, 119 So.2d 186; Kimbrough v. Hardison, 263 Ala. 132, 81 So.2d 606; Loop National Bank v. Cox, 255 Ala. 388, 51 So.2d 534; McHan v. McMurry, 173 Ala. 182, 55 So. 793. And in determining whether a bill for a temporary injunction contains equity, as shown on its face, its averments alone are considered, unaided by construction and unamplified by assumed amendment. Madison Limestone Co. v. McDonald, 264 Ala. 295, 87 So.2d 539, and cases there cited.

We proceed to consider the grounds which appellees argue give equity to the bill. First, it is argued that the avoidance of a multiplicity of suits gives the bill equity. We find no averment in the bill by way of fact or conclusion which raises the prevention of a multiplicity of suits. But that doctrine must be raised by averring facts and not conclusions. Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150, 77 So. 574.

But assuming that the doctrine had been raised by adequate pleading, it would not be appropriate here. The doctrine of multiplicity of suits does not apply to a multitude of suits. City of Albany v. Spragins, 214...