Babcock v. Reeves

48 So. 21, 149 Ala. 665, 1907 Ala. LEXIS 263

• Court: Supreme Court of Alabama
• Decided: February 5, 1907
• Status: Published

Opinion

ANDERSON, J. —

This suit Avas brought by all of the obligees under the bond, for the use of L. Reeves .as the party Avho had been damaged by the injunction suit. The bond provides for the payment of “all such damages and costs Av-hich any .person may sustain,’.’ is unlike thp bond in the case of Washington v. Timberlake, 74 Ala. 259, but is within the influence of the case of Smith v. Mutual, Loan & Trust Co., 102 Ala. 282, 14 South. 625, and was properly brought.

The complainant avers that the bill was dismissed, and that the injunction Avas dissolved. This was a sufficient aArerment of a breach. — Zeigler v. David, 23 Ala. 127.

Whether the bond Avas pioperly given under the statute or not, it Avas good as a common-laAV obligation, and as such AAras binding on the surety, Babcock. — Halsey v. Murray, 112 Ala. 185, 20 South. 575. The facts set up in the defendant’s special plea did not operate to discharge the first bond, and the demurrer to said plea was properly sustained.

The trial court did not err in permitting the plaintiff to- introduce the proceedings and decree .in the injunction case, or in refusing the charges requested by the defendant. .'

The judgment of the circuit court is affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.