Tyson v. Norwood

• Decision Date: 06 July 1910
• Citation: 170 Ala. 651,54 So. 176
• Parties: TYSON v. NORWOOD ET AL.
• Court: Alabama Supreme Court

54 So. 176

170 Ala. 651

TYSON v. NORWOOD ET AL.

Supreme Court of Alabama

July 6, 1910

Rehearing Denied Jan. 12, 1911.

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

Action by Silas Tyson, as trustee, against Joseph Norwood and others, on an injunction bond. From a judgment for defendants, plaintiff appeals. Affirmed.

The action was upon an injunction bond made pursuant to an order of the city court of Montgomery in an equity suit wherein Norwood was complainant and Tyson, as trustee, was respondent. The complaint alleges dissolution of the injunction and the failure of the complainant to pay the attorney's fees incurred in defending said injunction suit and procuring a dissolution thereof. Plea 3 avers that the cause was submitted on May 31, 1902, and a decree entered dismissing the bill and dissolving the injunction; that on June 2, 1902, the city court entered an order that if the complainant should desire to appeal from the decree dissolving said injunction, and desire to restore said injunction pending such appeal, he might do so on the complainant entering into a bond in the sum of $1,000 payable to Silas Tyson as trustee, conditioned and payable as required by law; and it was further decreed that the decree dissolving said injunction be suspended until and during the day of June 7, 1902, in order to give said Norwood an opportunity to make said bond. It is then averred that an appeal was taken from said decree and the bond executed on June 5, 1902, within the time prescribed by said decree. Then follows the bond, and the fact that it was approved by the register of the city court and filed in said court on June 5 1902. It is further alleged that, pursuant to said appeal said cause came on to be heard in the Supreme Court of Alabama, and on the 10th day of July, 1903, said Supreme Court of Alabama rendered its decree, reversing the decree rendered by the city court of Montgomery, and ordering that said injunction be reinstated, and that said decree of reversal reinstating said injunction has remained in full force and effect, and unreversed. Wherefore defendants say that plaintiff cannot have and maintain said action. The fourth plea sets up practically the same facts in shorter form. The demurrers take the point that the matters alleged in said plea do not avoid the liability upon the obligation sued upon, and the fact that the Supreme Court reversed the lower court in the dissolution of the injunction and reinstated the injunction does not relieve the defendant from his liability on said bond.

Hill Hill & Whiting and Tyson, Wilson & Martin, for appellant.

Troy, Watts & Letcher and J. M. Chilton, for appellees.

ANDERSON J.

The bond sued on in the case at bar was given under section 788 of the Code of 1896 (section 4517, Code 1907). Said section provides for the payment of such costs or damages as any person may sustain by the suing out of such injunction, if the same is " dissolved. " So the question here is: Was the injunction dissolved? It is true the judge of the city court dissolved same; but immediately thereafter the defendant in the case at bar, the then complainant, took an appeal, under the authority of section 428 of the Code of 1896, a supersedeas bond was given under rule 87 of the Code of 1896 (rule 86 of the Code of 1907), and the injunction was reinstated. Upon appeal the decree of the lower court dissolving the injunction was reversed, the dissolution was held for naught, and the injunction was made perpetual by this court. The result is there was no forfeiture of the bond, as there...