Harrison v. Yerby , 87 Ala. 185 ( 1888 )

SOMERVILLE, J.

The motion made before the chancellor was to dissolve the injunction, on the denial of the facts constituting the equity of the bill, as contained in the answer of the respondent. This motion was overruled, and from this ruling the present appeal was taken.

The denials contained in the answer are not so full and complete as we might desire. But, considering that they are sufficiently so, the rule is not imperative, that the injunction shall in all such cases be dissolved, The court is invested with a wide latitude of discretion in acting on such cases. It will especially weigh the relative degree of injury or benefit to the parties which may ensue from the maintenance of the injunction on the one hand, or its dissolution on the other; and if the continuance of the writ will probably cause less injustice and inconvenience to the defendant, than its dissolution will to the complainant, the court, upon balancing the question of relative damage, always feels at liberty to exercise its discretion in furtherance of justice, by maintaining the injunction; especially where the discretion of the lower court, which is entitled to great respect, has been apparently exercised without abuse. Where irreparable mischief to the complainant will be likely to follow from a dissolution, the appellate court always feels authorized to allow a special injunction- to remain in force, until a final hearing can be had on the merits. —Bibb v. Shackelford, 38 Ala. 611; East & West R. R. Co. v. East Tenn., &c. R. R. Co., 75 Ala. 275; Chambers v. Ala. Iron Co., 67 Ala. 353; Collier v. Falk, 61 Ala. 105; Columbus & West. R. R. Co. v. Witherow, 82 Ala. 190; 2 High on Inj., § 150 et seq; Doughty v. S. & E. R. R. Co., 51 Amer. Dec. 267; McBrayer v Hardin, 53 Amer. Dec. 389.

There is no question as to the equity of the bill. If the facts alleged in it are satisfactorily proved, the complainant is unquestionably entitled to a perpetual injunction of the mortgage sale of the land. The defendant, Lupton, the vendor of the land, is a non-resident of the State. He has transferred the last note due for the purchase-money to the defendant Prude, who himself claims priority of lien on the premises. It is important to the complainant to have settled the relative priority of this lien and that of the mortgage executed by Lupton to the defendant Harrison. Without such adjustment, much embarrassment and consequent loss will probably ensue to complainant, which may prove irreparable. The defendants, on the contrary, can suffer no very great inconvenience by keeping the injunction in force, being fully protected against loss by the injunction bond.

The decree of the chancellor keeping the injunction in force is free from error, and is affirmed,