Upon reconsideration of this cause pending application for rehearing, the writer prepared an opinion expressive of his views and dissenting from the then prevailing opinion. Upon the cause coming on to be heard in consultation on the rehearing a majority of the court adopted the opinion so prepared, and it is as follows:
Complainants are beneficiaries of the trust estate. Edward Wilkinson, Jr., coexecutor and co-trustee, occupied to these complainants a fiduciary relationship. Defendant Bradley's connection began, according to averments of the bill, in May, 1942, his firm having been employed by said Wilkinson to represent and advise him as co-executor and co-trustee. I am unable to agree that these complainants are not appropriate parties to institute this proceeding; and I do not read the authority cited, Skyline Missionary Baptist Church v. Davis,245 Ala. 455, 17 So. 2d 533, as holding to a contrary theory. True there is no direct relationship of attorney and client existing between these complainants and attorney Bradley, yet as beneficiaries to the trust, and as representing the trustee, he owes to these complainants a positive duty of fidelity and loyalty, and it is clear enough the said trustee acted in all matters under his advice and direction, and would not himself institute any such suit. But in any event, if, as indicated, the suit should have been brought in the name of the trustee for the benefit of these complainants, that was a matter which could be well supplied by an amendment, which is contemplated in a motion to discharge an injunction as distinguished from the motion to dissolve. The motion to discharge, as is well understood, rests upon irregularities in the original issuance of the injunction, and as a general rule the complainant is given an opportunity to amend the bill. Barnett v. State ex rel. Simpson, 235 Ala. 326, 179 So. 208; Acker v. Green,216 Ala. 445, 113 So. 411; Jones v. Ewing, 56 Ala. 360; Grooms v. Brown-Marx Co., 236 Ala. 655, 184 So. 698; Burch v. Burch,231 Ala. 464, 165 So. 387; 43 C.J.S., Injunctions, § 241, pages 980, 981.
The ruling here permits the defendant to in effect gain a dissolution without questioning the equity of the bill or being required to file an answer. Indeed, the motion to discharge does not contemplate an examination into the merits of the case. The present minority opinion indicates that the decree on the question of removal of Wilkinson as co-trustee and co-executor on appeal to this court presented the substance of what is involved in this record. The question of a restraining order was not there determined, and I am unable to see wherein this record discloses that appeal would in any manner affect the present one. Whether or not the trial judge in issuing the writ was cognizant or ignorant of this decree does not appear from this record, nor can I see that it would be material one way or the other.
Of course, it is clear enough that the bill has equity (4 Pomeroy Eq.Jur., 5th Ed., § 1339), and in my opinion the complainants were the proper parties to institute the suit, the bill disclosing, as it does, the close relationship between Wilkinson, the co-trustee, and these complainants and the fiduciary relation of Mr. Bradley to all of them. 1st Thornton, Attorneys at Law, §§ 174-5. Indeed, the minority opinion, as I read it, recognizes the right of these complainants to bring such a suit in the name of the co-executor to object to the dual relationship *Page 291 on defendant Bradley's part, provided it is satisfactorily shown that injury will result if the dual representation continues.
We are not here considering the allegational sufficiencies, vel non, of the bill of complaint, but merely whether or not it shows equity on its face and we think it sufficiently shows probable damage to the complainant by the dual relationship of Bradley in attempting to represent conflicting interests to avert the discharge of the injunction. Whatever may have been the origin of the purchase of the 34 shares of common stock by Mrs. Lanier, and however well intentioned defendant Bradley may have been in assisting her for this purpose to procure a loan by the use of his own personal assets, and whatever may be said in regard to Mrs. Lanier's rights to reimbursement for the money so expended in the purchase of the stock, yet it very clearly appears that at the time of filing this bill and the hearing of the motion to discharge, the real purpose of securing and holding on to the stock held by Mrs. Lanier concerns a matter of control of the corporation, and a deprivation of the estate of said stock. That very clearly appears from the affidavit of Mrs. Mudd beginning on page 59 of the record in which her colloquy with defendant Bradley is disclosed, and in which he admitted that one of the efforts was to keep her, Mrs. Mudd, from getting control. And immediately following, in this same colloquy, defendant was asked by Mrs. Mudd whether or not he was then representing her in such effort, to which he replied: "I am representing you as beneficiary under the will and the living trust," and stated in further reply that he thought he was so looking after her interest. It must be borne in mind, of course, that this defendant was then and has all along been the attorney for the trustee who accepted a fiduciary relation to these complainants as such trustee. And that as such attorney such relationship to the beneficiaries was acknowledged. Clearly enough this suffices for the purpose of this hearing.
Whether or not probable damages must be shown under the circumstances here disclosed, we need not stop to inquire, as probable damages, in our opinion, sufficiently appears. See, however, Boyd v. Second Judicial Dist. Court, 51 Nev. 264,274 P. 7; Bryant v. McIntosh, 3 Cal. App. 95, 84 P. 440, 134 A.L.R. 1310, Notes; Barreda Corporation v. Ballenger, Tex.Civ.App., 116 S.W.2d 442; Slay v. Mary Couts Burnett Trust, Tex.Civ.App., 180 S.W.2d 480; Bogert on Trusts, Vol. 3, § 484; 12 Am.J. 680; Taylor v. Errion, 137 N.J. Eq. 221,44 A.2d 356, 361; Overfield v. Penroad Corporation, D.C.,42 F. Supp. 586; United States v. Carter, 217 U.S. 286, 30 S. Ct. 515,54 L. Ed. 769, 19 Am.Cas. 594; 1 Thornton, Attorneys at Law, §§ 174-5.
The rule of law here applicable is to be applied regardless of good intentions, or whether in fact any injury has resulted. It is considered a rule of sound policy and rigidly adhered to. 12 Am.J. 680. The fact that defendant may have acted with good intentions, as he sees it, does not affect the question of his duty to those beneficiaries of a trust of which he was attorney.
But I intend no extensive discussion. Whatever answer defendant may have to the bill presented might well have been disclosed by a motion to dissolve the injunction, but not that to discharge, a distinction which this court has long recognized. And though in some of our cases we have used the expression that the injunction was correctly discharged as being "improvidently" granted, yet an examination of these authorities will show that there was irregularity in the original issuance of the writ, and generally this irregularity appears upon the face of the proceeding. Illustrative is Acker v. Green, supra, where the proceeding disclosed on its face irregularities, in that the judge had no authority to order the injunction, and a like ruling was made when the writ was issued contrary to the statute, as in Rochell v. City of Florence,236 Ala. 313, 182 So. 50.
The motion to discharge appears to be rested upon a statement in Daniels Chancery Practice page 1679 (to the effect that when an injunction was obtained on misstatement of facts the motion to discharge is the proper order.) In the note thereto is cited an old English authority of Angier v. May, 3 Eq.Rep. 488, where there was discrepancy in the statement of service in the order and that in the affidavit this was sufficient irregularity to justify a motion *Page 292 to discharge, which authority in itself, I must confess, does not appear to me to be of great force. The other authority cited in the note is the Wisconsin case of Haight v. Lucia,36 Wis. 355, wherein the court observed that the complainant had grossly abused the process of the court, which in itself would have justified the court in dissolving the injunction.
It appears, therefore, these authorities are not here of material consequence.
But assuming that a misstatement of facts would justify a discharge rather than an order of dissolution, there was no proof of any verbal misstatement of facts. Counsel for complainants on the hearing moved that the trial judge recuse himself in order that he may be used as a witness to the effect no misrepresentation was made. The trial judge denied the motion and it was conceded no verbal misrepresentation was made. But it appears defendant insists the bill did not state the full history of this litigation which has continued for several years and consists of hundreds of pages of records. We know of no necessity for the bill to so detail all of this litigation. It presented a single question as to whether or not defendant, as attorney for the trustee, could also represent Mrs. Lanier in her insistence to hold on to the stock in the effort to prevent these complainants, who are also beneficiaries of the trust, from acquiring control. Any matter of defense to these averments might be presented on a hearing to dissolve the injunction by the answer and proof in support thereof as authorized by our statute. Title 7, § 1061, Code 1940. But the motion to discharge was an improper remedy and should not have been sustained.
Nor is it a matter of great consequence whether the order was issued without having it set down for hearing.
Whether the order should be made upon presentation of the bill or set down for hearing was entirely a matter within the sound discretion of the trial judge. Title 7, § 1054, Code 1940.
We conclude, therefore, that as the case now stands the injunction should not have been discharged and that the lower court erred in so ruling. It results, therefore, that the rehearing is granted, the judgment of affirmance set aside, and one here entered overruling the motion, re-instating the injunction and the cause remanded.
Rehearing granted; reversed, rendered and remanded.
LIVINGSTON, LAWSON and SIMPSON, JJ., concur.
BROWN, FOSTER and STAKELY, JJ., dissent.
On Rehearing.