Taggart v. Weinacker's, Inc.

Citation214 So.2d 913,283 Ala. 171
Decision Date19 September 1968
Docket Number1 Div. 295
PartiesClifford TAGGART et al. v. WEINACKER'S, INC.
CourtSupreme Court of Alabama

Otto E. Simon, of Simon & Wood, Mobile, for appellants.

Howell, Johnston & Langford and M. A. Marsal, Mobile, for appellee.

COLEMAN, Justice.

Respondents appeal from a decree denying their motion to dissolve a temporary injunction.

Complainant filed a vertified bill of complaint averring that it possessed and operated a shopping center at the intersection of Government and Catherine streets in Mobile, and that the continuing trespass by respondents on complainant's lot deprived it of peaceful possession and caused it irreparable injury.

On a petition, treated as an amendment to the bill, the court granted a temporary injunction restraining the trespass.

Respondents filed a plea to the jurisdiction asserting that state court jurisdiction of the subject matter had been pre-empted by the National Labor Relations Act and that the National Labor Relations Board had taken jurisdiction of the dispute between these parties in proceedings filed by respondents with the Board; and that the Board had taken jurisdiction and had certified the respondent union as bargaining representative of the employees of complainant on April 16, 1964, prior to filing of complainant's bill on January 21, 1965. It appears that proceedings were had before the Board, which did not include the subject matter of the instant suit. The court overruled the plea.

Respondents then filed an answer and motion to dissolve the temporary injunction, in which respondents expressly reserved exception to the ruling on the plea, and again raised objection to the court's jurisdiction, and prayed for dissolution of the injunction.

The cause was heard and was submitted at conclusion of the hearing on verified bill, petition, affidavits, answer, and motion to dissolve.

The court again decided that it had jurisdiction and denied the motion to dissolve. respondents appealed.

Motion to affirm.

Respondents have made ten assignments of error and argue them in two groups. Respondents argue assignments 2, 3, 4, 7, and 10 in bulk in one group, and assignments 1, 5, 6, 8, and 9 in bulk in another group.

Complainant says that some of the assignments in each group are bad and not sufficient to invite review, are not related to other assignments argued in bulk in the same groups, and, therefore, the other assignments in the two groups ought not to be considered and the decree appealed from should be affirmed.

It is true that where unrelated assignments are argued together, and one is without merit, the others will not be considered; National Association For The Advancement of Colored People v. State, 274 Ala. 544, 150 So.2d 677; cases cited in Ala.Digest, Appeal & Error, k736; but this rule applies only when the assignments are not kindred or related. Southern Electric Generating Company v. Lance, 269 Ala. 25, 33, 110 So.2d 627. Where the assignments of error are so related that they may be treated as being predicated upon a single argument, the fact that they are argued in bulk is not objectionable. Hartford Fire Ins. Co. v. Clark, 258 Ala. 141, 152, 61 So.2d 19; Southern Electric Generating Company v. Lance,supra; Socier v. Woodard, 264 Ala. 514, 518, 88 So.2d 783; Bryan v. W. T. Smith Lumber Co., 278 Ala. 538, 542, 179 So.2d 287. In a case where three assignments were argued together and were related or kindred, this court did consider them separately. Gilliland & Echols Farm Supply & Hatchery v. Credit Equipment Corp., 269 Ala. 190, 195, 112 So.2d 331.

Where several assignments are governed by the same legal principles and argument, it is not objectionable to argue them in bulk in the brief. Hartford Fire Ins. Co. v. Clark, supra; Socier v. Woodard, supra; Bryan v. W. T. Smith Lumber Co., supra.

In the first group, assignments 2, 3, 4, 7, and 10 are argued together. They recite:

'2. The trial court erred in its order of January 25, 1965 overruling the Respondents' plea to the jurisdiction. (Transcript pg. 73).

'3. The trial court erred in its order of April 1, 1965 wherein the court decreed it had jurisdiction over the subject matter of the suit. (Transcript pg. 82).

'4. The trial court erred in its order of April 1, 1965 wherein the court decreed that jurisdiction had not been divested by the National Labor Relations Act, as amended. (Transcript pg. 82).

'. . .

'7. The trial court's ruling of April 1, 1965 that the court had jurisdiction of the subject matter involved in the suit was contrary to the law of this cause. (Transcript pg. 82).

'. . .

'10. The order of the trial court on April 1, 1965 holding that the primary jurisdiction of the subject matter in dispute had not been pre-empted by the National Labor Relations Board and denying the Respondents' Motion to Dissolve the Writ of Temporary Injunction and to Dismiss the Complainants' (sic) Verified Bill and Petition was contrary to the law in this cause. (Transcript pg. 82).'

Complainant argues that assignment 2 is bad because it fails to show how or in what way the court erred. We are not inclined to agree with this argument. The assignment says the court erred in overruling respondents' plea to the jurisdiction. This shows how the court erred.

Complainant says assignments 7 and 10 are bad and complainant is probably correct. These assignments do not assert that the court erred and merely say that the ruling was contrary to law. National Association For The Advancement of Colored People v. State, supra, and Andrews v. May, 277 Ala. 248, 249, (1), 168 So.2d 619.

Even if assignments 2, 7, and 10 are bad, however, all the assignments in this group are related because they are governed by the same legal principles and argument, to wit, that the trial court had been divested of jurisdiction because the National Labor Relations Act had pre-empted jurisdiction of the subject matter of the suit. Assignments 3 and 4 appear to be good assignments and we will consider them, although other related assignments argued in the group are bad. Gilliland & Echols Farm Supply & Hatchery v. Credit Equipment Corp., supra. In the second group of assignments, which are argued together, is assignment 1 which recites:

'1. The trial court erred in issuing a Writ of Injunction on January 22, 1965. (Transcript pg. 14).'

The order of January 22, 1963, was made without the hearing provided for by § 1054, Title 7, Code 1940. No appeal lies from the order granting the injunction unless the order is shown by the record to have been made, or purports to have been made, after a hearing as provided by § 1054, Title 7, Code 1940 (§ 8304, Code 1923). Berman v. Wreck-A-Pair Building Co., 234 Ala. 293, 297, 175 So. 269. The order of January 22, 1965, granting the injunction will not support an appeal.

In an appeal involving a similar order granting a temporary injunction without a hearing as provided by § 1054, Title 7, this court said:

'In our opinion, the assignments of error which challenge the decree of March 19, 1960, in so far as it orders the issuance of a temporary injunction present nothing for our review, for an appeal does not lie from an order or decree granting a temporary injunction unless the record shows that the order or decree was made or purported to be made after a hearing as provided by § 1054, Title 7, Code 1940. (Citations Omitted)

'The appellant's remedy in regard to the temporary injunction was by way of motion to dissolve under the provisions of § 1052, Title 7, Code 1940, and if the ruling was adverse to appeal therefrom as provided by § 757, Title 7, Code 1940.' Brooks v. Everett, 271 Ala. 380, 384, 124 So.2d 100, 104.

See also: WGOK, Inc. v. WMOZ, Inc., 275 Ala. 264, 265, 154 So.2d 22.

Complainant says that assignment 1 presents nothing for review. We agree.

Complainant says further that because assignment 1 presents nothing for review and is argued in bulk together with assignments 5, 6, 8, and 9, none of the assignments argued in bulk in this group are to be considered.

We are of opinion that all assignments in the second group are related because they depend upon the same legal principles and argument, to wit, that the First and Fourteenth Amendments to the Constitution of the United States do not permit the state to enjoin respondents from picketing on complainant's property, and, therefore, that the court erred in denying the motion to dissolve. Assignment 8 recites:

'8. The trial court erred in its order of April 1, 1965 denying the Respondents' Motion to Dissolve the Writ of Temporary Injunction and to Dismiss the Complainants' (sic) Verified Bill and Petition. (Transcript pg. 82).'

Assignment 8 asserts that the court erred and states how the court erred. We think it has not been shown that this is a bad assignment, and we will consider it.

For these reasons, the motion to affirm is overruled.

On the merits.

Respondents argue that the trial court erred in two particulars, first, in determining that it had jurisdiction of the subject matter of the suit.

In support of this argument, respondents cite a number of decisions which hold that under the Labor Management Relations Act as amended, U.S.C.A., Title 29, § 141, et seq., state courts are excluded from jurisdiction over peaceful picketing and that exclusive jurisdiction has been conferred on the National Labor Relations Board. Respondents say that the concerted activity of picketing is subject to control and regulation by the Board, that the Board has assumed jurisdiction of the dispute between these parties in other particulars, and that complainant's only remedy is by bringing the subject matter of the instant suit to the attention of the Board, which has not expressly declined jurisdiction over the activity here enjoined.

In support of this contention, respondents cite San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, in...

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