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In Ingram v. Erwin, 57 Ala. App. 408, 329 So.2d 99 (1976), cited by the trial judge in support of his judgment, this court granted a warehouseman's lien to a mechanic for storage costs.
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Civ. 588.
January 28, 1976. Rehearing Denied February 25, 1976.
Appeal from the Circuit Court, Shelby County, James H. Sharbutt, J.
Erskine R. Lindsey, Birmingham, for appellant; F. R. Ingram, pro se.
A bill without Equity will not support an injunction of any character under any cirstances. Wallace v. Malone, 279 Ala. 93, 182 So.2d 360, on p. 363; McHan v. McMurry, 173 Ala. 182, 55 So. 793; Pearson v. Duncan Son, 198 Ala. 25, 73 So. 406, at p. 408; Coley v. English, 204 Ala. 691, 87 So. 81. A statutory repairman's lien must be asserted within the statutory period, or both the right of action and the right to a lien are lost. Title 33, Sec. 6, Code of Alabama, Recompiled 1958; The Harrisburg, 119 U.S. 214, 7 S.Ct. 140, 147, 30 L.Ed. 358; The Edna, 5 Cir., 185 F. 206, 208. A Defendant in a detinue action who refuses to deliver property belonging to Plaintiff, and does not at that time assert his claim for a lien as the basis of his refusal, waives any right to thereafter assert that lien in defense against the detinue action. Spence v. McMillan, 10 Ala. 583; Leigh Bros. v. Mobile Ohio R. R. Co., 58 Ala. 165; Alabama Cotton Oil Co. v. Weeden, 150 Ala. 587, 48 So. 926; Plastone Plastic Co. v. Birmingham Fire Cas. Co., 276 Ala. 657, 165 So.2d 914. A Defendant in a law action who wishes to assert an equitable defense has an option as to whether he will file an equity action to enjoin prosecution of the law action, or remove the law action to Equity, but he must choose one or the other of the two remedies. Title 13, Sec. 153 154, 1958 Recompiled Code of Alabama; Cadick Milling Co. v. Dothan Bank, etc. Co., 242 Ala. 132, 5 So.2d 101; Ex Parte Deaton, 242 Ala. 474, 6 So.2d 593. Liens can only be created by common-law, by statute, by contracts, and by established equitable rulings by appellate courts, and no new type of lien can be created by a trial court without the consent of the owner. Security Federal S. L. Ass'n. v. Underwood C. S. Co., 245 Ala. 56, 16 So.2d 100; Jackson v. Cantrell, 36 Ala. App. 587, 61 So.2d 459. Where a wrong can be compensated by money a court of equity will not assume jurisdiction because an adequate remedy at law exists, and where the question is one of damage to individual or property rights, to warrant a court of equity to assume jurisdiction, the damage must be in its nature irreparable or incapable of measurement in money. Gulf Compress Co. v. Harris, 158 Ala. 343, 48 So. 477, 24 L.R.A., N.S., 399.
Thomas Reuben Bell, Jerry L. Fielding, Sylacauga, for appellees.
Owner of property cannot maintain detinue or trover against a warehouseman holding property with a lien for storage charges. Fuentes v. Shevin, 1972, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556; Hall v. Clark, 1933, 227 Ala. 571, 151 So. 445; Shawl v. Melton, 1955, 38 Ala. App. 264, 81 So.2d 921; Southern Railway Company v. Lockwood Manufacturing Company, 1904, 142 Ala. 322, 37 So. 667; State Farm Mutual Automobile Insurance Company v. Wagnon, 1974, 53 Ala. App. 712, 304 So.2d 216; WGOK v. WMOZ, 1963, 275 Ala. 263, 154 So.2d 22. A warehouseman has a lien on the stored property for the storage charges thereon. Southern Railway Company v. Lockwood Manufacturing Company, 1904, 142 Ala. 322, 37 So. 667. In a civil action for accounting, where the testimony is taken before the trial judge in open court, the court's finding has the force and effect of a jury verdict, and unless palpably wrong, erroneous, or against the great preponderance of the evidence, will be sustained. King v. Langham, 1961, 272 Ala. 662, 133 So.2d 669; Sterling Oil of Oklahoma v. Pack, 1973, 291 Ala. 727, 287 So.2d 847.
The Circuit Court of Shelby County sitting without a jury assessed damages of $7,000 against F. R. Ingram, representing money owed by him to George Erwin. Ingram prosecutes this appeal from that judgment.
The dispositive issues presented for this court's consideration are whether Tit. 7, § 1054, Code of Ala. 1940, entitled appellant Ingram to notice prior to a hearing on an injunction; whether at that hearing Ingram should have been awarded possession of the construction machinery involved in this lawsuit; and whether under the law and the evidence appellee Erwin was entitled to the warehouseman's lien and the $7,000 in damages which were awarded to him.
The tendencies of the evidence as revealed by the record are as follows:
Erwin is primarily a mechanic operating an equipment repair establishment. In 1969, Ingram turned over various pieces of construction equipment to Erwin for repair. During the latter part of that same year, Ingram purchased a tractor and low-boy trailer and assigned them to Erwin, who was to do repair work on them also. While it is certain that Erwin was to repair both the construction equipment and the tractor-trailer unit, the evidence was in sharp conflict as to what other business arrangements existed between the parties concerning the equipment and the unit.
In January of 1971, Ingram repossessed the tractor and low-boy, which he later sold. At that time, pursuant to an agreement between the two individuals, Ingram apparently owed Erwin approximately $2,800 for repairs performed on the tractor and low-boy.
Ingram subsequently attempted to remove the construction equipment from Erwin's premises, where they had remained since placed there in 1969. Erwin refused to allow their removal, and Ingram instituted an action in detinue for their recovery, together with a claim of money damages for his loss of their use and for their conversion.
A hearing was held on the detinue action pursuant to Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed.2d 556, 92 S.Ct. 1983. At that hearing, Ingram was formally served with an equity bill in which Erwin claimed a warehouseman's lien for storage charges on the aforementioned construction equipment. Erwin's equity bill further prayed that Ingram be enjoined from prosecuting his detinue action until the merits of Erwin's claim could be determined. The trial judge then and there took testimony and considered the equity complaint. Ingram was then enjoined from further prosecution of his detinue action as prayed for by Erwin, and the two lawsuits were later consolidated for trial.
Ingram's detinue claim was denied. The trial judge, as noted above, upon conclusion of the consolidated trial, awarded $7,000 in damages and a warehouseman's lien to Erwin, from which judgment Ingram appeals.
Ingram initially assigns error in that he did not receive three days' notice of the hearing on the temporary injunction pursuant to Tit. 7, § 1054, Code of Ala. 1940. That code section, which was in effect at the time of this trial, provides as follows:
"When a bill praying for an injunction is presented for fiat to any judge authorized to grant injunctions, he may, if in his opinion no substantial injury would result to the complainant from delay, set a time and place for the hearing of the application, not more than ten days thereafter, and may require the complainant to give the defendant or defendants to be affected by the writ at least three days' notice of such time and place and to serve them with a copy of the bill, if to be found within the state, and if the defendant or defendants cannot with due diligence be served with such notice and copy within the time prescribed, the judge may, in his discretion, on the day fixed, proceed to hear the application without notice or to continue the hearing to a future day, so that notice may be given the defendant."
We initially note that this statutory provision has been superseded by the new Rules of Civil Procedure, and is no longer of force and effect.
The language of § 1054 concerning notice is obviously not cast in mandatory terms. This construction is buttressed by the cases of Lukes v. Alabama Power Co., 257 Ala. 590, 60 So.2d 349; and Berman v. Wreck-A-Pair Bldg. Co., 234 Ala. 293, 175 So. 269, which hold that notice and a hearing are not required by § 1054 but are within the sound discretion of the trial court.
Additionally, we observe that the hearing on the injunction was held contemporaneously with a preliminary detinue hearing on the same subject matter as that covered by the proposed injunction. Ingram, the party to be enjoined, was present at that detinue hearing, which was called at his instance. Under circumstances such as these, we find that three days' notice would not be required.
Ingram also urges error in that he was not awarded possession of the construction equipment at the above mentioned hearing. This contention is bottomed on the premise that Ingram's detinue action with appropriate bond required the trial court to award immediate possession to him. However, the trial judge after hearing testimony decided that the status quo should be maintained pending determination of Erwin's claim. Inasmuch as the grant of a temporary injunction rests within the discretion of the trial judge, we find no error in this regard. 12 Ala.Dig. Injunctions 135 and cases cited thereunder. By the above, this court should not be understood as holding that the trial court was required to enjoin the detinue action; only that in this instance, under these facts, the trial judge did not err in refusing to award possession of the property to Ingram under his detinue action. Nor, in this instance, did the trial court err in granting the injunction.
It is finally urged that error to reversal was committed by the trial court in its final judgment awarding Erwin a warehouseman's lien and $7,000 in damages.
In this regard, we initially note that the Alabama Supreme Court has held a warehouseman obtains a lien on stored property for storage charges thereon. Southern Railway Co. v. Lockwood Manufacturing Co., 142 Ala. 322, 37 So. 667. A garage keeper is a warehouseman as to vehicles kept in dead storage. 61A C.J.S. Motor Vehicles at p. 642. Furthermore, 78 Am.Jur.2d Warehouses § 2, defines a warehouseman as one who is in the business of storing other's goods, and the evidence indicates that Erwin would store the property of others in the course of his business. As such, the trial court was not in error in awarding Erwin a lien for his storage charges.
Proceeding to the award of $7,000 damages, there was testimony from which the trial court could have found that the only arrangement between Ingram and Erwin regarding the construction equipment was for Erwin to repair it, and that it was left on Erwin's premises until Ingram attempted to remove it in 1971. The trial court could also have found that storage fees were customarily charged by Erwin, that fees of $5 per day on the various items were reasonable, and as such that the storage charges of $3,500 which were actually determined by the trial court to be due were supported by the evidence.
There was also testimony to the effect that Erwin expended approximately 250 man-hours of work on the tractor and low-boy trailer, at rates of $5 an hour for mechanic's labor and $8.50 hourly for welding. Further testimony was that the parties agreed Ingram would reimburse Erwin for his labor expenses, under an arrangement whereby the two would rent out the unit as partners. Therefore, there was ample evidence from which the trial court could, as it did, have found that Ingram was indebted to Erwin since 1971 in the amount of $2,800 for repairs done to the tractor-trailer unit, excluding interest. International Union, United Auto, Aircraft Agr. Implement Workers of America (UAW-CIO) v. Palmer, 267 Ala. 683, 104 So.2d 691, stands for the proposition that the matter of damages must be left to the discretion of the trier of facts, whose judgment will not be interfered with unless the amount is so excessive as to show passion or prejudice or other improper motive. We find no such passion or prejudice or improper motive and therefore conclude that the judgment of $7,000 which includes interest is not excessive so as to require reversal. See also 7A Ala.Dig. Damages 119.
The transcript in this case is voluminous, being over 800 pages in length. The appellant's brief exceeds 130 pages. This clearly indicates the conflict in the evidence and the hotly contested nature of the proceedings. As such, where the evidence is conflicting and the testimony is taken ore tenus by the trial judge, his findings become like the verdict of a jury and will be reversed on appeal only for manifest and palpable error. San-Ann Service Inc. v. Bedingfield, 293 Ala. 469, 305 So.2d 374. From the facts as previously set out, there is sufficient evidence to sustain the judgment of the court below.
All assignments of error properly presented and argued having been considered, the case is due to be and accordingly is affirmed.
Affirmed.
WRIGHT, P. J., and BRADLEY, J., concur.