Opinion
2 Div. 129.
November 25, 1938. Rehearing Denied January 26, 1939.
Appeal from Circuit Court, Hale County; John Miller, Judge.
W. R. Withers, of Greensboro, for appellants.
The equity court will grant injunctive relief where the averments disclose a permanent injury to the substance of the estate which is irreparable. May v. Lowery, 214 Ala. 230, 107 So. 67, 69; Gulf Comp. Co. v. Harris, Cortner Co., 158 Ala. 343, 351, 48 So. 477, 24 L.R.A., N.S., 399. A continuing trespass will be enjoined by a court of equity. Ashurst v. McKenzie, 92 Ala. 484, 490, 9 So. 262. The affirmative charge should not be given for defendant where there is the slightest evidence showing a right of recovery. Chandler v. Owens, 235 Ala. 356, 179 So. 256; American Ry. Exp. Co. v. Henderson, 214 Ala. 268, 107 So. 746; Chevrolet Motor Co. v. Commercial Credit Co., 214 Ala. 433, 108 So. 248; McGahey v. Albritton, 214 Ala. 279, 107 So. 751. A judgment of nonsuit taken by plaintiff is a final judgment which will support an appeal, where nonsuit is granted, the case is dismissed and plaintiff is taxed with the costs. Ex parte Martin, 180 Ala. 620, 61 So. 905; Wood v. Coman, 56 Ala. 283; Lathrop Lbr. Co. v. Pioneer Lbr. Co., 207 Ala. 522, 93 So. 427; Esslinger v. Spragins, 236 Ala. 508, 183 So. 401; Code 1923, § 6431. Where several adverse rulings, taken together, superinduced the nonsuit, and such fact or necessity is apparent by the record or the bill of exceptions, such adverse rulings will be considered on appeal. Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11; Berlin Mach. Wks. v. Ewart Lumber Co., 184 Ala. 272, 279, 63 So. 567; Esslinger v. Spragins, supra.
S.W. H. Williams, of Greensboro, and Reuben H. Wright and Ward McFarland, both of Tuscaloosa, for appellee.
Where no objection was made and no exception reserved to the ruling which forced plaintiff to take a nonsuit, the ruling cannot be reviewed on appeal. Champion v. Central of Georgia R. Co., 165 Ala. 551, 51 So. 562; Vincent v. Rogers, 30 Ala. 471; Wyatt v. Evins, 52 Ala. 285. Where judgment entry recites plaintiff voluntarily suffered nonsuit, and neither the bill of exceptions nor other part of record shows nonsuit was taken in consequence of the ruling of the court, the appellate court will not infer that it was taken on account of ruling adverse to plaintiff. Tate v. McCrary, 21 Ala. 499. Nonsuit with bill of exceptions does not present for review all rulings theretofore made by the court, but only that ruling going to plaintiff's right to proceed. Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11; Engle v. Patterson, 167 Ala. 117, 52 So. 397; Rogers' Adm'r v. Jones, 51 Ala. 353; Levinshon v. Edwards, 79 Ala. 293; Smith v. L. N. R. Co., 208 Ala. 440, 94 So. 489; Corn Products Refining Co. v. Dreyfus Bros., 3 Ala. App. 529, 57 So. 517; City of Mobile v. Board of Revenue, 219 Ala. 60, 121 So. 49; Hartford Fire Ins. Co. v. Owen, 22 Ala. App. 414, 116 So. 310; Darden v. James, 48 Ala. 33; Mathis v. Oates, 57 Ala. 112, 117; Perry v. Danner, 74 Ala. 485; National Bank of Augusta v. Baker Hill Iron Co., 108 Ala. 635, 19 So. 47; Pennsylvania R. Co. v. Allison Lbr. Co., 17 Ala. App. 596, 88 So. 24; Alabama Great So. R. Co. v. H. Altman Co., 191 Ala. 429, 67 So. 589; Sands v. Hickey, 135 Ala. 322, 33 So. 827; Hedden v. Wefel, 13 Ala. App. 485, 69 So. 225; Wilson v. Gulf States Steel Co., 202 Ala. 639, 81 So. 581; Martin v. Powell, 200 Ala. 46, 75 So. 358. Where court simply intimates that it is going to give a charge, and the charge is neither given nor refused, and no objection is made to the statement of the court and no exception is reserved to this statement of the court and appellant then takes a voluntary nonsuit, there is nothing for the appellate court to review. Champion v. Central of Georgia R. Co., supra; Vincent v. Rogers, supra. Order refusing to transfer the cause to equity docket is reviewable only on final appeal. Esslinger v. Spragins, 236 Ala. 508, 183 So. 401, 403.
This suit was begun by these appellants in equity seeking to invoke the principle there available that an injunction will issue to prevent a trespass to realty, which consists in the destruction of a material portion of that which is the chief value of the realty on which the trespass occurs, without other allegations of irreparable injury: That it is not necessary to concede such a usurped possession and be remitted to a court of law. Tidwell v. Hitt Lumber Co., 198 Ala. 236, 73 So. 486, L.R.A.1917C, 232; Acker v. Green, 216 Ala. 445, 113 So. 411; Birmingham Trust Savings Co. v. Mason, 222 Ala. 38, 130 So. 559.
Demurrer to the bill was sustained, allowing an amendment which was filed giving detail of allegation and emphasis to the original averments, with an amendment to the prayer to the effect that, if mistaken in the remedy sought and the court should hold there is no remedy as claimed in equity, it will in that event transfer the cause to the law side of the court.
Demurrers were again filed, and upon consideration the court expressed the opinion that the bill is without equity, but made no decree on the demurrers, and upon the basis of that opinion and on the alternative prayer to transfer the cause to the law docket, made an order to that effect, but continued the temporary injunction pending the trial at law upon the execution of a new bond, which was made.
Thereupon a complaint was filed at law seeking to recover the property, and damages for the trespass, actual and exemplary. Issue was joined and the cause came on for trial, when plaintiffs moved to have it retransferred to equity. This motion was overruled, and plaintiffs excepted.
A trial was had with a jury, in which no rulings were made to which appellants excepted. Witnesses were examined, and the bill of exceptions has the following recital: "At the close of the evidence the defendant requested in writing the following charge: '(X-1) The court charges the jury that if they believe the evidence in the case they must find for the defendant.' The court intimated that the defendant was entitled to have this charge given to the jury and informed the plaintiffs that he was going to give said charge to the jury, whereupon plaintiffs took a non-suit. However, the above charge was never in fact given or refused by the court, and no endorsement was made thereon by the judge." A judgment of non-suit was accordingly entered, reciting that plaintiffs so prayed on account of adverse rulings of the court, without specifying them.
The appeal is from that non-suit by plaintiffs claiming the benefit of section 6431, Code. There are three assignments, (1) the decree sustaining demurrer to the bill, (2) the order transferring the cause to the law docket, and (3) in ruling that defendant is entitled to the affirmative charge.
When a plaintiff takes a non-suit to review adverse rulings, to which exception was reserved, or without exception when it is not necessary, it is not voluntary in the sense that the rulings are not reviewable, on account of the Code section above cited.
We have made reference to certain rulings which were made in the course of the trial and were sought to be reviewed when a non-suit is taken under the statute. We said that the test is whether the ruling, either singly or in conjunction with others, went "to the right of the plaintiff to proceed in his effort for recovery." Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11, 12; Russell v. Garrett, 208 Ala. 92, 93 So. 711; Garner v. Baker, 214 Ala. 385, 108 So. 38; City of Mobile v. Board of Revenue, 219 Ala. 60, 121 So. 49; Esslinger v. Spragins, 236 Ala. 508, 183 So. 401.
Counsel for plaintiff seemed to suppose that the intimation from the court that he would give the affirmative charge was such a ruling.
But we cannot distinguish the situation here shown from that discussed in Champion v. Central of Georgia Ry. Co., 165 Ala. 551, 51 So. 562. In construing it we are not particular about the words used either in making a ruling or in showing a purpose to review it by reserving an exception. Sims v. Tigrett, 229 Ala. 486, 158 So. 326. But there must be more than a mere intimation of what ruling might be expected. In the Sims Case, supra, the general charge was requested in writing, a motion to give it was declared to be granted, and in order to review that ruling a non-suit was taken. We extended the rule in that case as far as we think it may be done under the terms of the statute. This record does not show a sufficient compliance, and it was so held in the Champion Case, supra.
The appeal is not due to be dismissed since the judgment shows that the non-suit was not voluntary. But the record behind it does not contain a ruling to which plaintiffs excepted, nor one to which exception was not necessary, which "went to the right of plaintiff to proceed in his effort for recovery." The decree sustaining demurrer to the bill, and that transferring it to the law side were not of that sort, nor was the ruling on the motion to retransfer, which is not even reviewable on appeal from the final judgment. Holder v. Taylor, 233 Ala. 477, 172 So. 761; Derzis v. Cox, 223 Ala. 517, 137 So. 306; Garrett v. Moody, 234 Ala. 113, 173 So. 504.
The status of the record requires us to affirm the judgment; but we do not hold that the bill was without equity or that had the affirmative charge been given for defendant, it would not have been erroneous. Malone v. Lacroix, 143 Ala. 657, 144 Ala. 648, 41 So. 724; Dunn v. Ellisor, 225 Ala. 15, 141 So. 700; Mitchell v. Church of Christ, 219 Ala. 322, 122 So. 341; Section 5723 et seq., Code.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.
On Rehearing.
Application overruled.
GARDNER, BOULDIN, BROWN, FOSTER, and KNIGHT, JJ., concur.