Windham v. Elba Bank & Trust Co.

116 So. 704, 217 Ala. 516, 1928 Ala. LEXIS 16

Opinion

ANDERSON, C. J.

As we understand the appellee’s bill of complaint, and as construed and treated by the trial court, it is not one to try or quiet title, but simply seeks to enjoin continuous trespasses upon the premises. Should it have been one to test or quiet the title to the land, the pendency of the bill of W,. P. Windham was lis pendens, as it sought a redemption of the land and to have appellee’s deed declared a mortgage, and therefore necessarily affected the plaintiff’s title and would have afforded a basis for the abatement or consolidation of appellee’s bill with the other, and this regardless of whether appellee bad notice of the cross-bill of Mrs. Windham or not. The trial court held that the causes would be consolidated upon motion ánd, in effect, held that appellee’s bill was nothing more or less than an effort, whether it be called a bill, petition, or motion, to maintain the status quo pending the litigation. We think that the weight of the evidence establishes the appellee’s possession when the W. P. Windham bill was filed, and that the trial court did not err in not dissolving the injunction though it could and should have been more properly sought by answer, petition, or motion, or proceedings ancillary to or connected with the suit of Windham and as to which appellee was a party respondent, rather, than by an independent bill ignoring the former suit. The granting of, and refusal to dissolve, the injunction pending the outcome of the litigation, finds support in the case of Rice v. Davidson, 206 Ala. 226, 89 So. 600, and the decree of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and BROWN, JJ., concur.