May v. Walter Bros. , 85 Ala. 438 ( 1888 )

CLOPTON, J.

— The action, which is brought by appellant, is founded on a bond given by appellees to obtain a writ of injunction, restraining appellant from prosecuting an action at law in the Circuit Court, and a suit pending in the Chancery Court. The condition of the bond is, if the appellees shall pay “all damages which any person may sustain by the suing out of the injunction, if the same is dissolved,” then the obligation to be void. The complaint avers tbat tlie injunction was dissolved before the commencement of the action.

The suit in equity was a bill, filed by appellant to enforce a vendor’s lien on land, and the action at law was a suit on notes given by the vendees for the purchase-money. The case in equity brought by appellant, and the case in which the injunction was sued out, were submitted to the chancellor at the same time, to be heard together. The chancellor rendered a.decree, that appellant had a vendor’s lien on the land for the payment of the notes for the purchase-money, and, without a reference to the register, ascertained the amount due, and ordered a sale of the land to pay the same, and the costs of both suits. No decree dismissing the bill filed by appellees to obtain the injunction, or dissolving the injunction, was made by the chancellor, and the suits were not finally disposed of. The appellant has failed to show that the injunction was dissolved, and, of consequence, a breach of the bond.

Affirmed.