Dexter v. Ohlander

95 Ala. 467

• Court: Supreme Court of Alabama
• Decided: December 15, 1891
• Status: Published

Opinion

STONE, O. J.

It requires very great particularity of averment, and very clear proof, to authorize the reformation of a written contract. — 1 Story’s Equity, § 152; (Campbell v. Hatchett, 55 Ala. 548 ; Turner v. Kelly, 70 Ala. 85.

The answer is a full denial of every averment of the bill which tends to give it equity, and the chancellor did not err in dissolving the injunction. The suit, however, being-instituted to enjoin and “stay proceedings on a judgment at law,” the decree is imperfect in that it did not order and “require of the defendant a refunding bond,” according to the provisions of section 3531 of the Code of 1886. The decretal order of the chancellor is here corrected and amended, so as to require the defendant, Ohlander, to give a refunding bond with two sufficient sureties, in double the amount of the sum enjoined, as a condition precedent to the enforcement of said judgment; the bond to be payable and approved as required by the statute.

Let the costs of this appeal be paid equally by appellant and appellee.

Corrected and affirmed.