Robertson v. Walker

PETERS, C. J. This suit seems to have been instituted for two purposes: first, to reform a contract, which is set out in the pleadings as an exhibit to the bill; secondly, to correct certain “ errors of law or fact,” which it is alleged have occurred in the settlement of the estate of Jonathan McDonald, deceased, in the probate court of Limestone county, upon a decree of distribution under a proceeding of insolvency. Such a bill is not without equity. These are both grounds of relief in chancery. Whitehead v. Brown, 18 Ala. 682; Hair v. La Brouse, 10 Ala. 548. But a contract will not be reformed, when it speaks the true agreement between the parties. Larkins v. Biddle, 21 Ala. 252. The mistakes or' errors complained of are not alleged to have occurred without any fault or neglect on the part of the complainant. This; or something equivalent, should be stated in the bill. Rev. Code, §§ 2274, 2451. But [487] the defective allegation of a ground for equitable relief does not defeat the jurisdiction, if the party will amend his bill. Then, the injunction should not have been dissolved on the ground of a mere want of equity. But all the allegations of the bill, upon which its equity depends, are fully, directly, and completely denied in the answer; and there are no special reasons shown, and none appear from the case made, why the injunction should be retained. When this is the case, the injunction should be dissolved. Brooks v. Diaz & Co., 35 Ala. 599, and cases there cited; Withers v. Dickey, 1 Stew. 190. The purpose of the injunction in this case, is to restrain the enforcement of a decree of distribution on a settlement of an insolvent estate. Such a decree is a judgment for the payment of a sum of money. Rev. Code, §§ 2206, 2212. On the dissolution of such an injunction, on an interlocutory decree, the chancellor must require of the defendant a refunding bond, in double the amount of the sum enjoined, payable and approved as required by the Revised Code. Rev. Code, § 3437. This fully protects the complainant in such a case as this, and it does not justify the court in retaining the injunction, when the answer denies all the charges and all allegations of the bill on which the prayer for an injunction is founded, as is the case here. The judgment of the court below is reversed, and the cause is remanded, with instructions to the learned chancellor of that court to dissolve the injunction, as required by the law as expounded in this opinion. The costs of this appeal in this court, and in the court below, will be paid by the appellee, said William H. Walker. Brickell, J., not sitting in this case, having been of counsel.