Hill v. McKenzie , 39 Ala. 314 ( 1864 )

A. J. WALKER, C. J.

-Three persons joined in filing a bill for the injunction of a judgment. Tbej executed a bond, with surety, preliminary to the issue of the injunction. The final decree perpetuated the injunction of the judgment as to two of the complainants, and dissolved it as to the third. The three complainants were alike defendants in the judgment enjoined. The chancellor’s decree having been certified to the clerk of the court in which the judgment was rendered, an execution was issued against the defendant as to whom the injunction was dissolved, and against the surety. The surety obtained a supersedeas as to him. These facts present the question, whether an injunction bond has the effect of a judgment, when the injunction has been perpetuated as to two of the principal obligors, and dissolved as to the third, all of them being defendants in the judgment enjoined.

The statute under which the execution issued, gives to an injunction bond the force and effect of a judgment on the dissolution of the injunction, and then proceeds to declare, that “ it shall be lawful for the party, or parties, whose judgment may have been enjoined, to take out execution against all the obligors in the bond, for the amount of the judgment which shall have been enjoined, together with lawful interest thereon, and also the costs incurred in and about the said chancery proceedings.” — Olay’s Digest, 357, § 79. The obvious design of this law was that, in such a case as this, the bond should not have the effect of a judgment. It can not authorize an execution in this 'case, because two of the principal obligors have been discharged by the decree of the chancellor from the judgment, and the issue of an execution against them would violate the decree; and the statute does not give the effect of a judgment to the bond as to the sureties and a part of the obligors. The sureties can not be subjected to a statutory judgment, when two of their principals are relieved from the judgment by the chancellor’s decree. Otherwise they would be liable to a stricter and severer remedy than their principals.

The single point above decided leads to an affirmance of the judgment of the court below. There are several questions which we have pretermitted, because it was not necessary to decide tbem. We mention tbem, lest some opinion as to tbem might be implied. They are as follows: 1st, whether the bond, with its peculiar phraseology, is a security for the damages resulting from the issue of the injunction; 2d, whether the law, under which the effect of a judgment is attributed by counsel to the bond, is not repealed by the Code; 3d, whether the two principals, in whose favor the judgment was perpetually enjoined, and the sureties, are liable, in a suit on the bond, for the damages resulting from the improper issue of the injunction in favor of the third principal obligor.

[2.] It is fully settled, that a supersedeas was the proper remedy in this case. — Dunlap v. Clements, 18 Ala. 778; Del Barco v. Br. Bk. at Mobile, 12 Ala. 238; Taylor v. Powers, 3 Ala. 285.

The judgment is affirmed.