McMinn v. Karter , 123 Ala. 502 ( 1898 )

McCLELLAN, C. J.

-This cause has been heretofore in this court on appeal from an order dissolving the injunction.^ — 116 Ala. 390. On the bill, answer and affidavits our opinion then was that the injunction was properly dissolved, but the decree was reversed because the chancellor allowed an amendment of the verification of the answer after the cause had been submitted on motion to dissolve. We entertained some doubt at that time whether the bill showed that the respondent was about to join the building she was erecting to this party wall in a way to seriously weaken and impair the wall, and by incisions into it which were unnecessary to a proper and secure junction of her building onto the Avail. Since then the bill has been amended in this respect, and it is now made to appear by its. averments that at the time of the filing of the original bill the respondent was proceeding to erect a building on her adjoining lot and against this party Avail, making said Avail a part of her building, and intending and proceeding to cut numerous holes in said Avail for the sleepers and joists of her house, instead of resting the same on ledges or shoulders left on that 'side of the building — as indeed on the other — for that purpose, and anchoring the same by rods extending through the wall — as had been done by complainant on the other side — and that a perfect mechanical juncture, substantial, strong and safe, could be made by the use of sáid ledges and anchors; that the complainant had in that Avay made such juncture of his much larger and heavier building; that such juncture on respondent’s part would not at all impair or weaken the wall as a party Avail; but that a juncture formed in the mode proposed by the respondent and which she Avas proceeding to make would greatly and irreparably impair and weaken the wall, and greatly endanger complainant’s building, which depended upon it both for vertical and lateral support; and the particular manner in Avhich respondent was proceeding to cut into the wall, the size and number of the holes she Avas about to make, their distance apart, and the details of the injury they Avould work to .the wall, etc., etc., are averred in the bill, so that it is now made to clearly appear by the bill that the respondent was proposing and proceeding to deal with and join onto the party wall in an, unnecessary, wrongful and most injurious manner, violative of complainant’s rights in the wall and threatening irreparable damage to his building. So that if the facts alleged in the bill as existing at the time the original bill was filed are true, as is admitted for the purposes of this appeal by the motion to dismiss for want of equity and the demurrer, in our opinion the complainant is entitled to the injunctive relief prayed for, unless the case made by the bill is emasculated of equity by the allegation in.the amended bill “that since the filing of the original bill in this case the respondent has completed her said building and has .formed a good mechanical juncture to said party Avail, without cutting into the same in any manner, and is enjoying all the benefits and supports of said party Avail to her said, building.” The chancellor Avas of opinion that this averment took out of the bill any equity there may have been in it originally, and he sustained the motion to dismiss for the want of equity and the demurrer largely upon this ground; saying in the decree that “th,e court is of the opinion that there is no ground of equitable relief stated in the amended bill, especially as it is averred in the seventh paragraph thereof that the ‘respondent has completed her said building’ etc. etc. setting out the averment quoted above. We think this is a mistaken view. The original and amended bills are to be taken together and constitute but one bill; and that bill speaks as of the filing of the original bill as to the rights of the complainant.—Taunton & Brooks v. McInnish, 46 Ala. 619; Adams v. Phillips, 75 Ala. 461; American Freehold Land Mortgage Co. v. Sewell, 92 Ala. 163; Brackin v. Newman, 121 Ala. 311. And while facts occurring in the premises puis darrein continuance may, under our practice, be brought in by amendment, (Freeman v. Brown, 96 Ala. 301), it depends, of course, entirely upon the nature of a new and subsequently occurring fact Avhether it destroys the equity of the bill. A complainant might thus amend himself out of court so far as his title to the final relief originally sought is concerned by shoAving that since bill filed his rights had passed to another, or his estate had terminated, or the like; but an amendment puis darrein continuance, if we may so call it, AAdiich merely sets up recently occurring facts, the effect of which is to strengthen the case made as to the original right and to confirm the title originally alleged, can have no such effect. The amendment under consideration is of this latter class. The original bill and the bill as amended showed that at the time of filing the original bill the respondent was proceeding to make all improper and unlawful juncture onto the party wall by cutting into it and thereby greatly impairing and weakening it’to complainant’s injury and damage, that there was no occasion for such juncture, but that respondent could make a proper, safe and good mechanical juncture without cutting the wall at all. For the obvious purpose of merely lending additional force and strength to these averments, it is shown by 'the amendment that since the filing of the bill the respondent has in point ©f fact done what the bill originally alleged she could do, and has made a proper juncture in the manner the original bill averred she should make it, and has built her house and joined it onto the party wall without destroying or impairing its usefulness to complainant or impinging upon his rights in it, so that, as the bill now stands, its averments demonstrate by the accomplished fact that respondent was under no necessity, and therefore had no right, to make the juncture she was proposing and proceeding to make when the bill was filed, and which, according to other averments, would have been improper and most injurious and prejudicial to the complainant. And in view of the fact that this juncture was made by her while the temporary injunction was upon her and that there is no assurance, if the injunction is dissolved, that she will not at some future time in changing the sinall wooden building she has erected or in erecting another building again attempt to make the improper and unlawful juncture she, according to the bill, .intended and was proceeding to make when' the bill was filed, the circumstance of her having built her house and properly joined it onto the wall does not even tend to show that the complainant is how under no necessity to have her perpetually enjoined; and so far from tending to show that he originally had no title to that relief, it makes for just the contrary conclusion. And even if there were any room for saying that the desistance of the respondent from the alleged wrongful line of conduct upon which she had set herself, and her adoption of a method of juncture consonant with complainant’s rights obviates occasion to continue and perpetuate the injunction, it would by no means follow that complainant would be cast in the suit, that the injunction would be dissolved and complainant be subjected to damages on his injunction bond and mulct for the costs of the suit. At most the injunction Avould be discharged, the case would be disposed of as upon a plea of puis darrein continuance, and the complainant would be entitled to his costs.—Memphis & Charleston Railroad Co. v. Grayson, 88 Ala. 580.

There Avere many grounds of demurrer assigned, but none of them have any reference to this new matter injected into the case by amendment. There need have been no specification of the grounds of the motion to dismiss for Avant of equity, but respondent’s solicitors expressly based that motion upon seven specified grounds. In none of these is any reference made to this new matter. It is manifest, therefore, that the solicitors upon either hand in the court beloAV Avere of one mind as to the effect of the neAV matter in the case, that it at least did not hurt the bill. And Ave concur Avith them. Even if it had imported infirmity into the bill, the demurrer could not haAre been sustained on account of it, since the assignments do not go specially to it.

We Avill not separately discuss the grounds of the motion to dismiss and of the demurrer. Enough has been said to indicate the grounds of our opinion that the amended bill contains equity and that it properly presents the facts necessary to the relief prayed. The decree of the chancery court is reversed, and a decree Avill be here entered overruling the motion to dismiss for want of equity and the demurrer, and restoring the temporary injunction.

BeA’-ersed and rendered.