HILL, use &c. vs. McKENZIE

HILL, use &c. vs. McKENZIE. [PETITION POR SUPERSEDEAS OE EXECUTION.] 1. Summary judgment on injunction bond. — Where several defendants in a judgment at law join in abillfor an injunction, and in the execution of the required statutory bond; and the injunction is perpetuated as to apart of them only, and dissolved as to the others — the statute (Clay’s Digest, 357, § 79) does not give to the bond the effect of a judgment as against the latter, nor as against the sureties. 2. When supersedeas lies. — When an execution is improperly issued on a bond, on the ground that the statute gives it the effect of a judgment, a supersedeas is the proper remedy. Appeal from the Circuit Court of Tallapoosa. Tried before the Hon. Nat. Cook. At tbe fall term of said circuit court, A. 13.1842, a judgment was rendered in favor of Green W. Hill, for tbe use of David B. Culberson, against Beuben Lanier, David C. Neal, and William D. Powell. On tbe 13tb April, 1843, tbe three defendants in said judgment filed a bill in chancery, asking a dissolution of it, and, as required by the fiat of .the ebcuit judge who granted tbe injunction, executed a bond, with John McKenzie and E. J. W. Crockett as sureties, tbe condition of which was as follows : “ Now, if tbe said Eeuben Lanier, David C. Neal, and W. D. Powell shall well and truly pay all such costs and damages as tbe said Green W. Hill, administrator as aforesaid, and David B. Culberson, may sustain by tbe wrongful exhibition of said bill, then this obligation to be void,” &c. At tbe November term, 1853, tbe chancellor dismissed tbe bill, and dissolved tbe injunction; but bis decree was reversed by this court, on appeal, at its June term, 1854, and tbe cause was remanded. — See tbe ease reported in 25 Ala. 554. In May, 1855, tbe chancellor rendered a final decree in tbe cause, according to tbe principles settled by tbe decision of this court; perpetually enjoining tbe judgment as against Neal and Powell, but dissolving tbe injunction as against Lanier, and ordering tbe register to “certify accordingly to tbe court of law.” On tbe 22d July, 1857, tbe clerk of tbe circuit court issued an execution on said judgment, against Lanier, McKenzie, and Crockett; and in September, 1857, McKenzie filed bis petition for a supersedeas of this execution. Tbe judgment at law, tbe injunction bond, and tbe proceedings bad in tbe chancery suit, were made exhibits to tbe petition. A demurrer to tbe petition was interposed, in short by consent, but was overruled by tbe court; and issue being joined on tbe defendant’s pleas, (wbieb are not set out in tbe record,) tbe jury returned a verdict in favor of McKenzie, on which tbe court rendered judgment quashing tbe execution as to him. Tbe overruling of tbe demurrer to tbe petition, with other matters, is now assigned as error. Gunn & SteáNGE, for appellant. W. P. Chilton, contra. [MAJORITY — A. J. WALKER, C. J.] 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. 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.