The appellants have renewed their contention, on rehearing, that in as much as the injunction bond is signed only by the appellees — there being no sureties thereon — the injunction is void.
This appeal, as stated in the original opinion, is from a decree overruling the defendants' demurrers to the bill, and the question of the sufficiency of the injunction bond is in no way presented. This is a sufficient answer to the contention; but to show that it is without merit, if the question was presented, we quote from the opinion of this court in Jones v. Ewing et al., 56 Ala. 360, speaking through Brickell, C. J.: "The irregularity for which the chancellor dissolved the injunction, was the failure of the judge ordering the issue of the writ to require the complainant to execute a bond, with surety, for the payment of damages if the injunction was dissolved. R. C. § 3480. If it is conceded the order was for this reason irregular, it is voidable only, not void. The circuit judge had full authority to grant it, and the order was binding and conclusive, until on a proper application it was vacated. People v. Sturtevant, 9 N.Y. 266, 59 Am. Dec. 536." To the same effect, 32 C. J. 401, § 678.
True, the Mississippi cases — Morris v. Trussell, 144 Miss. 343,109 So. 854, and Castleman et al. v. State, 94 Miss. 609,47 So. 647, construing and applying the statutes of that state — are to the contrary, but they are in conflict with Jones v. Ewing et al., supra, construing our statute more than a half century ago, and the statute has been repeatedly readopted, without change. Barnewell v. Murrell, 108 Ala. 366, 18 So. 831.
We have stated the averments of the bill and their legal effect, giving emphasis to the statement in the resolutions,"to the end that discrimination in prices may be prevented." From this it is clear that some such thoughts as fixing prices were in mind, and, when the resolutions are taken in the light of the affirmative and positive averment that such agreement or combination was entered into, as we have held, they are sufficient as against the demurrers to give the bill equity.
The assertion of appellants in their brief on application for rehearing, that there is an absence of averment in the bill that the appellants are operating under the alleged combine or trust agreement, is fully answered by the statement of the case preceding the original opinion.
Moreover, this assertion is inconsistent with the further assertion that appellants have been "ruined" by the issuance of the injunction.
If, in fact, appellants are not operating their respective businesses in pursuance of the alleged combine or trust, or if in fact there is no such trust or combine, then the injunction in no way affects them in the conduct of their businesses. There is nothing in the injunction to restrain the defendants, each acting upon its own judgment without unlawful combine or agreement, from pursuing its own course in respect to its own particular business, and when it does no one can complain.
We are of opinion that the application should be overruled, and it is so ordered.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.