McLaughlin v. McLaughlin

36 Ala. 145

• Court: Supreme Court of Alabama
• Decided: January 15, 1860
• Status: Published

Opinion

STONE, J.

The chancellor -declined to pass on the equity of the bill; and, under the circumstances, we think it our duty to do likewise. Had the chancellor expressed any opinion on the frame of the bill, or its equities, motions and applications might have been urged before him, which we, as an appellate court, are incompetent to pass on.

We agree with the chancellor, that the answer contains a full and complete denial ©f every averment in the bill on which its claim to relief can be made to rest. He, therefore, did not err in dissolving the injunction.

The defendant had a judgment at law, which .under the bill in this case was enjoined. In dissolving the injunction, the chancellor should have required the defendant to execute .a refunding bond, under section 2982 of the-Code. For failing to do so, his decretal order dissolving the injunction is reversed; and this court, proceeding to make such an order as the chancellor should have made, doth hereby order and decree, that the injunction heretofore granted in this cause, be dissolved, on the defendant entering into bond, payable to, and approved by the register in chancery, for the' chancery court in and for Perry county, in the terms prescribed by section 2982 of the Code.

Let the costs of this appeal be paid by the appellee.