Boren, et al. v. Chisholm, 3 Ala. 513

ORMOND, J. The defendant in error presents to this Court a certificate of the Register of the Chancery Court at Montgomery, which recites that the plaintiffs in error filed their bill in equity, and obtained an injunction to a judgment al law, obtained by the defendant in error, against them, in the Circuit Court of Montgomery, for the sum of one thousand nine hundred and sixteen dollars, and that afterwards, at the June term of the Chancery Court, 1841, a decree was made, dismissing the bill, and that the injunction bond have the force and effect of a judgment, and be so certified to the Court of law.

That afterwards, the plaintiffs in error applied for and obtained a writ of error, returnable to. the present term of this Court, and entered into bond with surety, to prosecute their writ to effect, and to satisfy the judgment at law, which was enjoined according to the order and decree of this Court; whereupon the .order sand decree of the Court of Chancery was, and is superseded, • The record of the suit in chancery, not being filed pursuant to law, the defendant in error moved for an affirmance, of the decree of the Court below, with ten per cent, on the amount of the judgment at law.

The question to be determined is, whether the writ of error taken from the decree of the Chancellor, dismissing the bill, revives the injunction. The case of Garrow v. Carpenter & Hanrick, 4 Stew. & Por. 336, determined that the injunction in such a case as the present, was not revived, nor the execution at law superseded. But it is supposed that the 16th

section of the act of 1841, to regulate the practice in the Courts of Chancery, was designed to change the law in this particular. It provides, “that when an appeal or writ of error is taken to the Supreme Court from the decree of a Chancellor, all further- pro-ceedingson said decree, shall be thereby suspended.: Provided-, the appellant give bond, with security, as in cases of. error tq the Courts of law.” We do not think the legislature intended by this act to declare that the injunction should be reinstated by the-suing out of a writ of error to the decree dismissing the bill.

If such ha.fi been the design, express provision would doubtless have been made for the sum in which the bond was to be taken, which would have this effect. Great embarrassment would.arise too, in many cases, in ascertaining the rights of the sureties to the injunction and writ of error bonds. Besides, the issuance of an execution upon a judgment at law, suspended by an injunction of the Court of Chancery, cannot be said to be a proceeding under the decree dissolving the injunction.

The injunction was a prohibition to issue the'execution, until the Chancellor could inquire into the complaint — its dissolution cannot, with propriety of language, be said to give power to issue the execution, but merely removes a temporary restraint to the exercise of a power which exists, independent of the Chancellen.

The. issuance of an execution therefore, in such a case, is not a “ proceeding on the decree,” and therefore, certainly not within the letter of the law, and such serious inconveniences might, and probably would, arise from such a construction, that we cannot think it was in the contemplation of the legislature in 'the enactment. Nor is this enactment inoperative, unless the construction contended for, is placed upon it. In the case of Weatherford, et als. v. James, 2 Ala.

Rep. 170, we held that a decree was final, when it ascertained all the rights of the parties in litigation, though ministerial acts remained to be done. And it is not at all unusual for a Court of Chancery to decree a sum of money to be paid where there has been no previous judgment at law; in all such cases, the act would apply, and ■ was, to say the least, proper, as a declaratory act of what was before considered, somewhat doubtful, there, being no statute expressly authorizing-a writ of error to the decree-of a Court of Chancery, though in practice, it had been allowed.

For these reasons, we are of the opinion that the prosecution of a writ of error to a decree, dismissing a bill enjoining a judgment at law, does not reinstate the injunction, and supersede the issuance of an execution on the judgment at law, although a bond has been given with sureties, in double the amount of the judgment at law, for the prosecution of the writ of error.

It results from this opinion, that as the exgjSStion at law, was not superseded by the prosecution of the w|jjjgof error, that no damages-can be given in this Court, on thejp|Sfgment at law.— The result of the motion, in this case, is rd®ely to affirm the decree of the Chancellor.