Howle v. Scarbrough

DOWDELL, J. The appeal in this case is taken from the decree of the court dissolving the temporary injunction, theretofore granted. The motion to dissolve was predicated solely upon the denials in the sworn answer. The record shows that the submission for decree was had on the 13th day of March, 1903, on the motion of the respondent to dissolve the injunction upon the denials of the answer filed March 13th, 1903, to the original bill as amended by amendment filed March 13th, 1903. The answer filed March 13th, 1903, and upon .the denials of which the motion to dissolve was made, showed on its face to have been duly and properly verified. By this answer all of the material allegations, of the bilí were denied. It denied that-the respondent bad. tendered his resignation as an officer of the corporation, as alleged in the bill, and it also denied that the respondent was not a stockholder and director and that he had no interest in the company as-charged in the bill, and averred that he was a stockholder and director both at the time of the filing of the 151 bill and the filing of his answer. The bill itself stated that the respondent had been elected a director and president of the company, but charged that he sold his stock in the concern after he had been so elected. There is no specific denial of the charge as to his having sold his stock, but this allegation becomes immaterial, since the sale of his stock would not ipso facto vacate his office as director and president, and he was a stockholder at the time of the filing of the hill. — Nathan v. Tompkins, 82 Ala. 437. . After the submission of the cause for decree, the complainants filed a motion to strike the amended answer from the file. The court declined to consider the motion for any purpose on the submission. The action of the court in this respect was proper and free from error, since after the submission of the cause for decree, and while the same was still under the order of submission, the motion to strike the answer came too late and could form no part of the pleadings then on submission. There is no error in the decree rendered, and the same will be affirmed.