
    
      Ex parte Sayre.
    
      Ma/ndamus to Chancellor on Order Discharging Injunction.
    
    1. .-I idhoriti/ of judge- of City Court of Montgomery to grant injunction. The judge of the City Court of Montgomery has authority, equally with a circuit judge or chancellor, to grant an injunction in a case pending in Colbert county.
    2. I'iatfor injunction bcforebillfiled. —A fiat for an injunction, granted by the judge to whom the bill is presented before being filed in court, Yol. 95. is not void, but a mere irregularity; and the irregularity is waived by a motion to dissolve the injunction after answer filed.
    3. Dissolving or discharging injunction in vacation— A motion to dissolve an injunction, either 'for' want of equity in the bill, or on the denials of the answer, may be made and acted on in vacation (Code § 3532); but the statute does not apply to a motion to discharge an injunction, nor authorize the chancellor to discharge it in vacation.
    4. When appeal lies, or mandamus. — An appeal is given by statute from an order dissolving an injunction in vacation (Code, § 3613),but the statute does not include an order discharging an injunction; and there being no other adequate remedy, a mandamus will be awarded by this court to vacate such order.
    PETITION by-H. A. Sayre,B. B. Snodgrass and S. M. Levin, as trustees appointed in a deed of assignment executed by Moses Brothers, for a mandamus directed to Hon. Thomas Cobbs, presiding in the Chancery Court of Colbert county, requiring him to vacate an order discharging an injunction in vacation, under the facts stated in the opinion.
    Tompkins & Teoy, Stbingeellow & LeGband, for the petitioners,
    cited High on Injunctions, § 1583; E. & W. Railway Go. v. E. T., Va. & Ga. Railroad Go., 75 Ala. 278; Jones v. Eioing, 56 Ala. 360; 3 Brick. Digest, 626, § 31.
   COLEMAN, J.

A bill was brought by the petitioners as assignees of Moses Bros, and the individual members of the firm, for the purpose of restraining the defendant, A. H. Kel-lar, from selling certain real estate under a power of sale contained in a mortgage executed to him by M. L. Moses. The order for a provisional injunction was made by the judge of the City Court of Montgomery before the filing of the bill, but the writ of injunction did not issue until after the bill was filed. The defendant, after answering, made a motion to dissolve the injunction on the following grounds: first, that the answer denies the material allegations of the bill; second, that the bill is without equity; third, that the judge of the City Court was without jurisdiction to make an order granting the injunction at the time it was made. The chancellor, being of the opinion that the bill contained equity, and that the denials of the answer were not sufficient to dissolve the injunction, did not dissolve the injunction, on either of the first two grounds ; but he made - an order discharging the injunction, on the ground that the order for its issuance, having been made when no suit was pending, was void. This proceeding is an application by the complainants for a mandamus, commanding the chancellor to set aside the order discharging the injunction.

By the act creating the City Court of Montgomery, power is conferred npon the judge “to order tbe issue of writs of injunction, or any other writ or process, in any and every case in which, by the existing laws, a circuit judge might order the issue of any such like writ or process.” — Acts 1868, p. 121. By the laws then existing, judges of the Circuit Court had, and now have, authority to grant writs of injunction returnable into the courts of chancery, co-extensive with the power exercised by chancellors. The question therefore is, whether the order of a chancellor granting a temporary injunction before the bill is filed, is void, or a mere irregularity.

The point, that a restraining order before the suit is instituted is without authority and void, was made in Hayman v. Landers, 12 Cal. 107. This point was held to be untenable, notwithstanding a statute expressly provided that an injunction may be granted at the time of issuing the summons. Field, J., says: “The order could only take effect upon the filing of the complaint, and the bond or undertaking required, and it was unnecessary to delay the application to the judge until after the complaint had been filed. When a restraining order, or an injunction, is sought upon the complaint, it is the usual practice to present the complaint, in advance of the filing, to the judge, and obtain the order on the allowance of the writ; and with this practice the statute does not conflict. The order or writ can then be issued with the summons.” We have no statute regulating, expressly or impliedly, the time when an injunction may be granted. Mr. High observes : “The fact that the bill was not filed until after the injunction was ordered, is not sufficient ground for a reversal of the order, such omission being at the most but a mere irregularity which does not affect the merits of the cause.” — High on Inj., § 1583. And in Davis v. Reed, 14 Md. 152, it was held, the fact that the bill was not filed until after the injunction was ordered is, at most, but a mere irregularity, which can not operate a reversal of the order granting it. It is said: “It is not uncommon, in some of the counties, to proceed in this way. . . Where a practice has become inveterate, it is better to adhere to it, until changed by a prospective rule, than to incur the risk of doing injustice to a party who may have followed it, and especially when the opposite side has not been injured by the alleged irregularity.” Also, though where the application for an injunction is made by another, under the English practice the motion could only be made onj¡some day on which the court was sitting, and is made ex parte, and before tbe defendant bad entered an appearance, a certificate of tbe filing of tbe bill signed by one of tbe authorized clerks was requisite.. — -2 Dan. Ob. PL & Prac. 1667, 1669. Yet, in an urgent case, an interim injunction may be granted without notice that tbe motion for an injunction would be made ; but this authority does not go to tbe extent of bolding that tbe bill should not be first filed. So, in Thornloe v. Shonies, L. R. 16 Eq. 126, an interim injunction to restrain a sale which was expected to be completed within an hour, upon tbe plaintiff giving an undertaking to file tbe bill and affidavit in tbe course of tbe day, on tbe ground that plaintiff did not have time to prepare a copy of tbe bill for filing, tbe injunction was granted. And in Carr v. Morris, Ib. 125, where, on account of tbe office of tbe court being closed, tbe filing of tbe bill was delayed, it was held the court might grant an injunction before bill filed; but in this case the chancellor filed tbe copy of tbe bill produced to him, and directed that it be marked filed as of tbe day tbe injunction was granted, remarking that be felt bound to act as if tbe bill was filed before him on tbe day tbe application was made.

While we have found no authority declaring directly that it is a proper practice to grant tbe issue of an injunction before tbe filing of tbe bill, tbe authorities are abundant which bold that such an order before filing tbe bill is not void, but at most is a mere irregularity.

In tbe case of East. & West. R. R. Co. v. East Tenn., Va. & Ga. R. R. Co., 75 Ala. 375, it is declared, “A motion to dissolve an injunction can be founded only on a want of equity apparent on tbe face of tbe bill, or on a full and complete denial, by tbe verified answer of a material defendant, of tbe allegations upon which tbe equity of tbe bill depends. The motion itself is a waiver of tbe error or irregularity, if any, which may have attended tbe order for tbe issue of the writ, or which may be in tbe writ alone. These are available only upon motion for a discharge of tbe injunction, which must precede any act on tbe part of tbe defendant, in recognition or affirmance of its regularity.” And in Jones v. Ewing, 56 Ala. 362, it was held, “If tbe injunction has been irregularly granted, . . . tbe remedy is not by a motion to dissolve. Such motion, founded as it can be only on a want of equity in tbe bill, or tbe full and complete denial of its equity by tbe answer, is a waiver of tbe irregularity, if any has occurred in tbe grant of tbe writ.” A number of authorities are cited in support of tbe rule of law as declared,

In. Parker v. Williams, 4 Paige Ch. Rep. 439, it was belcb that “an irregularity in tbe service of tbe injunction was waived by tbe defendant voluntarily appearing and putting in bis answer. It was therefore too late for bim to mate the objection, after such a lapse of time, and after those proceedings bad taken place. When a party seeks to set aside tbe proceedings of bis adversary upon a technical irregularity, be must make bis application tbe first opportunity be has for that purpose.”

We are of opinion that tbe Chancery Court was without jurisdiction to render a decree in vacation, discharging tbe injunction, and in decreeing tbe order granting tbe injunction to be void. We are further of the opinion that tbe filing an answer, and moving tbe court to dissolve tbe injunction for want of equity, and upon answer, was a waiver of tbe irregularity in granting the injunction before tbe bill was filed.

Tbe only remaining question is, whether petitioner’s remedy is by mandamus or appeal. Tbe statute provides, that a defendant may move to dissolve an injunction in vacation before tbe chancellor. Tbe cause was regularly submitted to be beard in vacation upon tbe motion to dissolve tbe injunction, and it was at this bearing tbe chancellor erroneously discharged tbe injunction.

Tbe court has no authority to bear and determine, in vacation, motions which involve mere interlocutory orders and decrees, except as authorized by statute. Tbe statute (Code, § 3532) provides, that “a defendant may move to dissolve an injunction in vacation before tbe chancellor of tbe division in which tbe bill is filed, either for want of equity, or on tbe coming in of tbe answer,” &c.; and section 36Í3 provides, that “an appeal lies to the Supreme Court on all interlocutory orders, in term time or vacation, sustaining or dissolving injunctions,” &c.

Under tbe first statute cited, tbe power of tbe court to bear motions to dissolve an injunction in vacation is limited to cases where tbe motion is based upon a “want of equity, or on tbe coming in of tbe answer.” Tbe decisions of this court, E. & W. R. R. Co. v. E. T. Va. & Ga. R. R. Co. 75 Ala., supra, and Jones v. Ewing, 56 Ala., supra, and authorities cited, recognize a marked distinction between a motion to discharge an injunction and a motion to dissolve an injunction. They are made to rest on entirely different grounds, and in fact, tbe filing of an answer and motion to dissolve is held a waiver of tbe right to move for a discharge of tbe injunction. We have seen that tbe statute confers no authority upon tbe chancellor to hear in vacation a motion to discharge an injunction, and without judicial interpolation this court can not hold that such- power was rightfully exercised.

The right of appeal from an interlocutory order made in vacation by the chancellor, improperly discharging an injunction, is not covered by the statute, which grants appeals from interlocutory orders made in vacation. A party injuriously affected by such erroneous ruling has no remedy to correct the error except by the writ of mandamus. A different practice prevails in some of the States.— West v. Smith, 1 Green’s Ch. 309; 8 Paige, 45; Parker v. Williams, 4 Paige, 439; Leffingwell v. Chane, 5 Bosw. 703; Blair v. Boggs, 31 Penn. St. 274.

The defect in the statute, omitting to provide for the hearing of a motion to discharge an injunction in vacation, as is provided for hearing motions to dissolve an injunction, may lead to serious mischief, but the power to remedy the defect rests only with the legislature.

A decree will be here rendered, that a peremptory writ issue commanding the chancellor to set aside and vacate the order discharging the injunction, unless at the first term of the Chancery Court of Colbert county held after being informed of this order, the order discharging the injunction, mentioned in the petition, is set aside and vacated, and the injunction is reinstated.

The above opinion was in part prepared by the late Mr. Justice OloptoN.

ThobiNGTON, J., not sitting.  