Nixon v. Boning , 145 Ala. 277 ( 1906 )

DOWDELL, J.

The bill in this case is filed to abate a nuisance. The appeal is taken from a final decree of the chancery court, granting the complainant the relief prayed for. Motion is made by the appellee to dismiss the appeal, for that, since the taking of the same, the. appellants, respondents in the court below', have satisfied the decree by a performance of its mandatory order. In taking the appeal the respondents had the right to supersede the execution of the decree by the giving of the supersedeas bond prescribed by the chancellor, but the failure to give such bond did not take away their right of appeal. The failure to give such supersedeas bond left the respondents with the alternative of performing the decree or of being held in contempt for non-performance. Under these circumstances the performance by the respondents of the decree cannot be regarded as a voluntary performance in the sense which would render a voluntary satisfaction of a. judgment a waiver of the appeal. See authorities cited in note to the case of State v. Conkling, (Kan.) 37 Pac. 992, 45 Am. St. Rep. 270 ; 2 Cyc. pp. 647, 648. The motion to dismiss the appeal must be overruled. The jurisdiction of a court of equity to enjoin a continuing nuisance and compelling its abatement is too well settled to admit of question. — Ninninger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412 ; Farris v. Dudley, 78 Ala. 124, 56 Am. Rep. 24 ; Crabtree v. Baker, 75 Ala. 92, 51 Am. Rep. 424 ; Roberts v. Vest, 12 Ala. 355, 28 South. 412.

The cause was submitted to the chancellor on the pleadings and proof, and his conclusions of fact on the evidence is asked to be reviewed. The evidence in the case is quite voluminous, and while there are many conflicts in the testimony of witnesses it would subserve no good end for us here to enter upon a detailed discussion of the evidence. We have carefully considered the same, and we are fully persuaded that the chancellor was right in his findings as to the facts, and we concur in his conclusion. The decree will be affirmed.

Affirmed.

Tyson, Simpson, and Anderson, JJ., concur.