Garrow v. Carpenter , 4 Stew. & P. 336 ( 1833 )

Saffold, J.

Garrow, being appellant in this Court, from a decree in Chancery, rendered in the Circuit Court of Mobile,, in favor of the appellees, presents, by petition, an incidental question, for our consideration.

From the petition it appears, that the appellee^ having obtained a judgment at law against Garrow, for one thousand and seven dollars, he exhibited his bill, and obtained an injunction staying execution on the judgment, on giving bond and security, and releasing errors, as usual in such cases. After the defendants to the bill had made answer to the same, the Court, on the hearing of the cause, ordered and decreed a dissolution of the injunction, and dismissed the bill. From which decree Garrow took an appeal to this Court, on giving the usual bond and security, to pay' and satisfy such judgment of decree as this Court shall render in the premises. After which an execution was issued on the judgment at law, pursuant to a mandamus from the Circuit Court, commanding the clerk to issue it.

The petition further states, that the judgment is in favor of Carpenter and Hanrick, as administrators of Hall’s estate, which is insolvent, and can not be settled, and distribution made among the creditors, until the appeal in this Court shall have been finally determined, so that no injury can result to the estate, from a delay of the execution. He, therefore, prays from this Court a supersedeas, to stay all further proceedings, on the judgment and execution aforesaid, until a final decision shall lie had on the appeal.

Neither the fact, that Carpenter and Hanrick obtained the judgment at law, as administrators of an unsettled estate, or any other circumstance connected with the case, is deemed sufficient to distinguish it from others, that often occur.

The simple questions raised by the petition, are— 1st. After the dissolution, of an injunction and dismissal of the bill, has' an appeal from the decree, on the terms prescribed by statute, the effect to revive and continue the injunction 'l 2d. If it has not, of itself, is it competent and proper for this Court, to award a supersedeas of the execution at lav/, on the grounds assumed by the petitioner %

The statute authorises an appeal from any final judgment or decree of any Circuit Court, upon the appellant’s entering into bond and security, “ for prosecuting the same, with effect, or performing the judgment, sentence or decree, which the Supreme Court shall pass or make thereon,” provided the cause he decided against him.^a It is clear, that the appeal bond thus required, would not hind the security, for the amount of the judgment, enjoined, ha the event of an affirmance of the decree; nor can the appeal have the effect to discharge the security, in the injunction bond.

The only power which Chancery can exercise over a judgment, is to perpetuate the injunction, in whole or in part; or to dissolve it altogether : it can render no decree for the debt, or any part of it; nor for damages on the judgment, in the event of an af-firmance of the decree. The former is not subject to legal revision, either for reversal or affirmance; consequently, the appeal bond can only hind the security for the costs in Chancery, if decreed against the appellant.

But, it is insisted, that the injunction bond sufficiently insures the ultimate payment of the judgment at law, if not relieved • against: also, that, by statute, “ whenever an injunction .shall be dissolved, damages, after the rate of six per eent., shall be added to the amount: provided, the Court shall be of opinion, that the injunction, was obtained for delay ”^a

As respects the six per cent damages, it is sufficient to say, whenever such may be decreed, they would become identified with the judgment at law, as a part thereof, and the security for the injunction, would be no less bound for tiro damages, than for the original amount of the judgment and interest thereon. As to the payment, though security has been given, it was entered into with reference to the decree of the Circuit Court, either dissolving or perpetuating the injunction; after the dissolution has been decreed, if the effect of the appeal would be to revive the judgment, the applicant ought from analogy to other cases, to have been required to give new se-' curity for the debt thereby farther enjoined. Had this been done, then, according to the principle recognized by this Court, in the case of Winston, et al. vs. Rives,^b the security in the injunction bond would have been discharged, and the subsequent responsibility have rested on the new security taken on the appeal. Without any security, it would not be contended, the appeal could have been granted, or that a writ of error would have operated as a superse-deas.^c Then can it he supposed, for a moment, that the Legislature intended that a bond for a nominal amount, one to secure the costs in Chancery, should operate as a supersedeas of the judgment, for any amount, however large. Such a course would not only endanger the debt, from the possible insolvency of the former security, during the revived existence of the injunction, but. also produce great injustice to them by protracting the period of their responsibility, without their consent.

Our statutes only authorise an appeal or writ of error on final judgments or decrees ; we have often ruled, that a decree dissolving an injunction, before the final disposition of the hill, was in its nature interlocutory, and not subject to an appeal or writ of error : can the circumstance of the dissolution, and the dismissal of the bill, at the same time, vary the case'? Many authorities, both English and American, have been cited and commented on bjr the counsel for the petitioner, to prove, that an appeal from a decree in Chancery, on bond and security given, has the effect to suspend the operation of the decree, as in case of an appeal or writ of error from a judgment at law.^a That such is the practice according to the law and rules of Court, in England, and many of the States of the Union, including Alabama, in respect to the debt, duty or other matter directly and substantially decreed, there can he no doubt: but is the dissolution of an injunction to he viewed in that light'?

In Green vs. Winter,^b it was held, that an appeal in the first instance, stays all proceedings on the matter appealed from; and if the party wishes to proceed, notwithstanding the appeal, he must apply to the Chancellor for leave; and to give or refuse it, is a matter of discretion, according to the circumstances. The opinion of the Chancellor further remarked, tliat tlie rule now in England, ir?, that an appeal does not stay proceedings, unless by the special order of the House of Lords; that according to the more ancient practice there, it had that effect, unless otherwise ordered; that he considered the practice in New York to have been according to the former practice in the English Chancery; and that it was so established by several rules adopted by (hat Court; by one of which it was expressed, that an appeal should prevent the issuance of process upon the decree. It was there also said, that the difference between the English practice and that of New York, was, that by the former, the party roust apply for an order to stay the proceedings; but in the latter, the adversary must apply for leave to proceed. It will be observed, however, that the practice in the Courts referred to, is governed by rules of their own adoption, which q.re different from any we have, or are competent to declare; our statutes have regulated the right, also, the effect of appeals and writs of error. But what is most material to be noticed, is, that the case of Green vs. Winter, was an original bill •for an account and settlement against a trustee ; such was the object of the decree appealed from, and the Chancellor considered it a decree from which an appeal could he taken. From this it sufficiently appears, that that case only maintains the principle, that an appeal lies from a decree rendered in an original bill, and when legally prosecuted, it suspends the execution of such decree; that such is the correct practice, under our law, also, I have no doubt. But the question is essentially different, whether an appeal from a decree dismissing an injunction hill and dissolving the injunction, can revive the injuncr tion.

One case, it is true, has been cited on the part of the petitioner, which if considered sound law, would be an authority in his favor. That is the case of Turner vs. Scott, and another,^a where the Court of appeals of Virginia, held, that a dissolved'injunction was revived by an appeal tafeen in the Court of Chancery; and that it was improper in the appellee, to take out an execution, so long as the appeal was depending. The force of that decision, however, is much weakened from the circumstance, that it is irreconcilable with the principles of previous decisions of the same Court; that no authorities appear to have been cited by the counsel or the Court; and that it seems not to have been argued or solemnly considered.

In the previous case of Epps vs. Thurman,^b an in-' junction to a judgment at law had been dissolved, and the bill dismissed. From this decree the Court of Chancery allowed Epps, the complainant, to appeal, on his executing a bond, in the penalty of two hundred dollars, with one Jordan as his security; the condition of the appeal bond was, that the appellant should prosecute the said appeal with effect, or should perform the same, and well and truly pay all such damages and costs as should be awarded against him, by the Court of Appeals, in case the said decree should be affirmed. A rule having been granted against the appellant, to show cause, why he should not give other security for the payment of the judgment enjoined, the Court of Appeals referred to the statute prescribing the terms on which appeals were authorised to he granted; shewing that bond was required, in a. reasonable penalty, with condition to satisfy and pay the amount recovered in the Court appealed from, and all costs, and to perform, in all things, the said decree, or final order, in case the same should be affirmed. Under that statute, the authority to take bond, on appeal, for the amount of the judgment enjoined, was at least equal to the authority of our statute. The Court of Virginia said, “ the bond thus' to be given, is to have respect to what the appellant was bound to do, or what was recovered from him by the decree of the Court appealed from.” Further, they said, “ in the case before us, there was nothing in the decree of the Chancellor, which bound the appellant to pay the judgment at law; there was nothing recovered from him but costs. The appellant had a right to appeal, on the terms which are prescribed by law.” This case was argued and appears to have been maturely considered by the Virginia Court.

A similar principle was recognised in another case, in the same Court—M'Kay vs. Hite's ex’ors.^a There, the question was, whether a party appealing from, an order, dissolving an injunction, was bound to give security for the payment of the debt, as on the grant of an original injunction? The Court of Appeals said, that question had been solemnly considered, by the Court, and it had been decided that such an appeal must be allowed, on the appellant giving security merely to perform the decree of the inferior Court, and to pay costs and damages awarded there, if the decree should be affirmed.

These are the principles which are considered irre-concileable with the doctrine, .that an appeal from a decree, dissolving an injunction and dismissing the bill, on giving such bond as is required by the statute of Virginia or this State, is entitled to the effect of a supersedeas of the judgment, which had been enjoined.

If the Virginia Cpurt considered the principles of these decisions, consistent, (which is doubtful,) this Court can not so regard them.

Several cases decided in New York, are more decisive and satisfactory on this point. In Hoyt vs. Gelston,^a the Supreme Court held, that an injunction could not be revived, by an appeal from a decree dissolving it. In explaining the principles of that decision, the Court says — “ By the present rules in the Court of Chancery, certain masters, designated by the Chancellor, are authorised to grant injunctions, and which are binding until dissolved by him.” That, “ in the case before them the injunction had been dissolved, from which order there was an appeal; and it is now urged that this appeal suspends all proceedings in this Court, as much as if the injunction was still in force, To give such effect to an appeal from an or-' der dissolving an injunction, would be very mischievous in practice, and serve as a great engine of delay. We must consider the cáse now in this Court, as if no injunction had ever issued,” &c. “ It is enough for us, that there is no existing injunction.”

The Court, in the same case, admitted, that an appeal would lie, by the statutes of that State, from a decree dissolving an injunction; or even from a refusal to grant one, on the first application; but that the appeal could not, in either case, tie up the pro-' ceedings at law.

Under our statute, authorising appeals, only from final judgments or decrees, this Court has often held that an appeal .will not lie, from a decree which merely dissolves the injunction; but, according to the opinion of the Court of New York, if the. right of appeal he admitted, it can not suspend the proceedings at law, by reviving the injunction.'

The case of Wood vs. Dwight,^a is also fully, in point. There, the question was, whether an appeal from an order .dissolving an injunction, staying an execution at law, had the effect to revive the injunction 1

The Chancellor said—“ If the injunction could he revived, by the mere act of the party, in filing an appeal, it would he giving to him, not only a power oí control over the orders of the Court, hut of creating an injunction.”

■ He referred to the opinion of the Supreme Court of the United States, in Young vs. Grundy,^b as an authority that no appeal would even lie upon an interlocutory order, dissolving an injunction. He also remarked, that whether an appeal can be sustained, is a question for the Court of errors; hut supposing it can be sustained, it is impossible that a process that is duly discharged, and funclus officio., can he revived by the mere act of the party. “ How, (says he,) could this Court undertake to' enforce the process, and punish contempts of it, in the very face o the order dissolving it: “ when a process is once dis i f charged and dead, it is gone forever; and it can never be revived, but by a new exertion of judicial power.”

2. From the view taken of the first point, it is sufficiently evident that this Court does not conceive itself authorised, on the ground of the supposed illegality in its issuance, to award a supersedeas of the execution at law; or do otherwise than deny the prayer of the petitioner.

A Toul. Dig 167

a Toul. Dig 491

b See ante, of thisvol;

c Toul,Dig. 483.

a Eden, on Injuncti’ns 229; 14Ve. 585; 15ib. 182; 18 ib. 452-3; J’s Ch. U. 66, 160.

b 1 Johns. .Ch. R..77.

a 5 Rand. 332.

b 4 Ib. 384

a 4 Rand 564

a 13 Johns. 139

a 7John C. d Rep. 295.

b 6 Craun. 51.