Planters & Merchants Bank v. Laucheimer & Sons

14 So. 776, 102 Ala. 454, 102 Ala. 457

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

Opinion

HABALSON, J.

The bill in this case contains all the necessary averments to give it equity. It is not distinguishable in principle from the case of Cartwright v. Bamberger, Bloom & Co., 90 Ala. 405, where the merits of a bill of this character are fully discussed and passed on, and we deem it unnecessary to repeat here what was said there. See also Bamberger, Bloom & Co. v. Voorhees, 99 Ala. 292.

There is no merit in the special plea filed, that the names of the individuals composing the several complainant firms were not properly set out in the bill. In each instance, the names of the individuals composing the respective firms were given, and in a manner fully meeting the requirements of the rules of chancery pleading. — Reid v. McLeod, 20 Ala. 577; Ortez v. Jewett, 23 Ala. 662; Couch v. Atkinson, 32 Ala. 633; Lanford v. Patton, 44 Ala. 584; Sims, Harrison & Co. v. Jacobson, 51 Ala. 186; Moore v. Watts & Sons, 81 Ala. 265; Foreman v. Weil, 98 Ala. 495.

The answers very fully denied the allegations on which the equities of the bill rested ; but there were several ex parte affidavits read on the trial of the motion, without objection, in support of the allegations of the bill. Whether they were properly admissible or not, if they had been objected to, it is unnecessary to decide.

We are not satisfied that the chancellor erred in denying the motion to dissolve. We apprehend he chose the wiser course in not granting the motion. We have repeatedly held, that on a motion to dissolve an injunction, when the answer contains a full and complete denial of the material allegations of the bill, the court is invested with wide discretion in passing on the question, in the exercise of which, it will consider and balance the probable resulting damages to the respective parties ; and if it appear that greater injury may thereby result to the complainant than to the defendant, from continuing the writ until the final hearing, it will be retained. Such seems to have been the case here. — Harrison v. Yerby, 87 Ala. 189; Kinney v. Ensminger, 87 Ala. 341; Whittey & Trimble v. Dunham Lumber Co., 89 Ala. 497.

By a singular omission, the alleged insolvent, fraudulent debtor,. D. G. May, was not made a party to the bill. Pie was a necessary party, and, the cause can not proceed without making him one.

Affirmed.