Ex parte Fechheimer

103 Ala. 154

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

McCLELLAN, J.

Section 3613 of the Code provides for an appeal to the Supreme Court from all interlocutory orders, in term time or vacation, sustaining or dissolving injunctions. An order discharging an injunction is quite a different thing from an order dissolving an injunction ; and it has been decided that the section referred to above does not authorize an appeal from an order discharging an injunction. — Ex parte Sayre, 95 Ala. 288. Had the legislative purpose in the enactment of that section been to authorize an appeal from an order overruling and denying a motion to discharge an injunction, it is not conceivable that the law-makers would not also have therein authorized an appeal from an order granting such motion and discharging an injunction. That this was not done convinces us that there was no purpose to authorize an appeal from any order made on a motion to discharge an injunction, and that the whole operation of section 3613 is upon orders on motion to-dissolve injunctions.

In the case at bar there was a motion to discharge the injunction, on the ground that the bond given for the issuance thereof was not the bond, in respect of its condition , which the statute required on the case made by the bill, unless complainant executed a sufficient bond. The chancellor overruled the motion and refused to discharge the writ. No interlocutory appeal from this action of the chancellor being allowed by section 3613, or any other statutory provision, and it not being a matter for remedy on appeal from a final decree in the cause, our opinion is that mandamus is the appropriate remedy for the correction of the chancellor’s action, if it be erroneous. We do not think, however, that the chancellor erred in refusing to discharge the injunction here. The purpose of this bill was and is “to stay proceeding of the judgment in a personal action within the clear intention of section 3522 of the Code. It is quite true that no judgment had been rendered against the complainant eo nomine, but a judgment had been rendered against the. claimant, whose surety complainant was, in the trial of his claim to the property attached and which had been delivered to him on the 'bond signed by the claimant, complainant and another. This judgment was for the property thus claimed and taken bv the claimant, or its alternate value. The property was not returned within the statutory period, and when that had elapsed the sheriff returned the claim bond as forfeited. This forfeiture, together with the fact that judgment had been, entered against the claimant, authorize the issuance of execution against the sureties. The judgment against the principal in the bond was in legal effect converted by-operation of law through the return of forfeiture into a judgment against the sureties for all the purposes of section 3522, and the bond necessary for them to give to stay proceedings thereunder against them is that prescribed by that section which was given in this case.

Mandamus denied.