Zimmern v. Southern Ry.

Supreme Court of Alabama

Zimmern v. Southern Ry.

89 So. 171, 206 Ala. 69

CourtSupreme Court of Alabama

DecidedJuly 5, 1921

StatusPublished

Cited by7 cases

This text of 89 So. 171 (Zimmern v. Southern Ry.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zimmern v. Southern Ry., 89 So. 171, 206 Ala. 69 (Ala. 1921).

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Opinion

ANDERSON, C. J.

The application for injunction in this case does not appear to have been refused without setting the matter down for hearing so as to come within the influence of sections 4519 and 4520 of the Code, which authorize a judge of the Supreme Court to order the issuance of same; but it appears that the course pursued was under section 4528 of the Code and succeeding sections,' and that the injunction was not refused by the circuit judge until after the matter' had been set down for hearing and ivas in fact heard.

[1] I am therefore of the opinion that, as the matter was set down for hearing, and as the complainant did not abandon the hearing and renew his application to a judge of the Supreme Court under section 4534 of the Code, but engaged in the hearing, he has no right to apply to a judge of this court for an injunction, and his remedy is by appeal under section 4531, and a judge of this court had no authority to order the issuance of said injunction under sections 4519 and 4520, which have no application to the instant case, and which is unlike the case of Mobile & Ohio R. Co. v. Zimmern, 89 South. 475. 1 The order heretofore made directing the issuance of the injunction in this case was made under a misapprehension of the facts and was unauthorized, and the same is hereby canceled and held for naught.

[2] It would no doubt be true that, if the previous order made by me was authorized, I would now be without authority to cancel same, and that, if it was unauthorized, it is void and needs no cancellation; but, since the matter has been brought to my attention, there can be no harm in declaring the order a nullity for the benefit of the parties of interest, notwithstanding such an order may be unnecessary.

Note. — While this matter was addressed to the Chief Justice, and not the court, all of the Justices were consulted in an advisory capacity before the foregoing order was made, and all concur in the foregoing order and opinion.

All the Justices concur.

1

Ante, p. 37.

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ANDERSON, C. J.

The application for injunction in this case does not appear to have been refused without setting the matter down for hearing so as to come within the influence of sections 4519 and 4520 of the Code, which authorize a judge of the Supreme Court to order the issuance of same; but it appears that the course pursued was under section 4528 of the Code and succeeding sections,' and that the injunction was not refused by the circuit judge until after the matter' had been set down for hearing and ivas in fact heard.

[1] I am therefore of the opinion that, as the matter was set down for hearing, and as the complainant did not abandon the hearing and renew his application to a judge of the Supreme Court under section 4534 of the Code, but engaged in the hearing, he has no right to apply to a judge of this court for an injunction, and his remedy is by appeal under section 4531, and a judge of this court had no authority to order the issuance of said injunction under sections 4519 and 4520, which have no application to the instant case, and which is unlike the case of Mobile & Ohio R. Co. v. Zimmern, 89 South. 475. 1 The order heretofore made directing the issuance of the injunction in this case was made under a misapprehension of the facts and was unauthorized, and the same is hereby canceled and held for naught.

[2] It would no doubt be true that, if the previous order made by me was authorized, I would now be without authority to cancel same, and that, if it was unauthorized, it is void and needs no cancellation; but, since the matter has been brought to my attention, there can be no harm in declaring the order a nullity for the benefit of the parties of interest, notwithstanding such an order may be unnecessary.

Note. — While this matter was addressed to the Chief Justice, and not the court, all of the Justices were consulted in an advisory capacity before the foregoing order was made, and all concur in the foregoing order and opinion.

All the Justices concur.

1

Ante, p. 37.

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Bluebook (online)

89 So. 171, 206 Ala. 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zimmern-v-southern-ry-ala-1921.

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