The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1906-06-17
|. & N. Now Seeks Writ of
Prohibition
SKETCH OF The LtFIGAT TON
Judgment Of Custer Granted BY Mont
eomery City Court on May 10 Is
Now Focal Point of the
Situation.

Louisville and Nashville Railroad COM
pany today asked Of the supreme court
/ a writ of prohibition. If after investlga-
ton, 1t is found that the appeal taken
! by the attorneys of the road from the
action of the Montgomery city court
ousting them from control of the South
and North railroad, is found not to super
cede the Judgment of custer, which APP
peal is now pending.
This is done to head off any ruling by
the lower court that the custer Judg-
ment at once became effective and that
since its day of issue, May 16, last the
Louisville and Nashville Railroad COM
pany had been in contempt of court.
Last summer the attorneys for Henry
B. Gray, a minority stockholder of the
South and North Alabama railroad. filed
with the city court of Montgomery an
application for quo warranto directed
to the Louisville and Nashville to show
1 by what authority it operated the South
and North railroad. After some months,
to wit. on May Is. the said lower court
handed down an opinion that the Louis
vile and Nashville had usurped the fran
/ chises of the South and North and had
/ no right to operate 1t. At the same time
! a Judgment of custer was given. holding
! that the Louisville and Nashville should
! at once be deprived of the right to con-
troll the minor corporation.
! While 1t was eontended at the time
that the custer judgment was not such
/ a ruling as would be superseded by
an appeal bond, it was decided to hold
that It did, and appeal was taken to
| the supreme court, the Louisville and
| Nashville filing two supercedas bonds of
| $4,000 each, and giving ample security
| for COSTS Later a third bond was filed
! to keep the two supercedas securities
! company.
An effort was made by the attorneys
of Mr.. Gray, Phares Coleman and s.
/ H. Dent to have the appeal argued be-
/ fore the supreme court. but that body
ruled that it would not have time to
! study and pass on It by adjournment,
! and it was continued to the next term,
which begins next November.
Gray Attorneys Move.
/ Finding that the case was not going
to be handled by the supreme court,
Messrs Coleman and Dent ON Thursday
last filed a petition in the city court of
Montgomery, alleging that the Louisville
! and Nashville was in contempt of court,
! in that they still continued to operate the
said South and North after the judg-
ment ousting them from control. This
was, of course on the theory that the
| appeal to the supreme court did not have
precedence over the custer judgment.
Judge A. d. Sayre of the city court
issued a rule at once. citing the represen-
| +atives of the Louisville and Nashville,
! in charge of the South and North d.
vision to appear June %. and show cause
why they should not be adjudged in
contempt of court. Tho papers were served
! on r. Il. Brooks, superintendent and T.
| Sid Jones, district passenger agent at
| birmingham At the same time the judge
ordered that an applicat ton for receiver
! for the South and North. made May 49,
nv Walter Moore of Birmingham, be
| heard.
! As result of this latter move by the
attorneys of Gray, the Louisville and
! Nashville by Gregory l.. Smith or Mobile
and George w. Jones of Montgomery hied
today a petition in the supreme court ask
ing that II supercede the judgment of the
! lower court; or, If in its opinion, the ap-
neal did not supercede the custer, II
| grant a writ of prohibition preventing the
putting of the custer into effect until such
| time as 1t was ascertained the justice OF
the situation. In other words. the Louis
Vile and Nashville asks that IL the custer
is not supplanted by the appeal the high
court hold off the action authorized by
the Judgment until the matter was fully
reviewed by the highest tribunal In the
| state -.
writ today. but set down Tuesday, June
| 10 ar 1890 O'Clock, for hearing at which
time the attorneys on the other side are
| notified to appear and show cause II
| thew care to and seem able, why the pc
tition of the railroad should not be
| granted
interesting Contest.
II begins to look as If the contest be-
tween Henry B. Gray of Birmingham and
| the Louisville and Nashville railroad over
| the operation of the South and North
| railroad. Is going to develop into one OF
| the nrettiest fights ever known in the
state THE Judgment of custer granted by
| the Montgomery city court on May 16 is
now the focal point of the situation. 1t de-
| n,ives the Louisville and Nashville or
| the right to operate the South and North
because Of charter rights granted the lat
| ter and never, the court holds, transferred
to the former.
The point Is TO prevent the custer judy
| nent becoming at once operative. If 1t
should every train on the line from here
| to Decatur could be stopped by the au-
| tomato operation of the decree. Every
| conductor and engineer would be liable
| 10 arrest for contempt of court and the
travelling public would be put to no end
| of Inconvenience If, also, it should be
| decided that the custer was not super
| coded by the appeal to the supreme court,
every train run since its issue would be
in contempt OF the court. according to the
| oninion of many leading lawyers.
Now the only way to prevent the custer
| Judgment from becoming effective If the
| lower court on June %. a day set now
| for the hearing, decided that 1t is not
| superceded by the appeal to the supreme
| court will be to have the supreme court
| issue a writ of prohibition preventing ac-
ton on the Judgment until the rights of
| all parties are determined by the highest
| court In the state. This writ may be Is
| sued by the supreme court while in ses-
sion or by any Justice of the court in va
| cation time. In the latter event the return
| is made TO the next session of the court.
MANY thought that trouble was in pros
| pect as result of the possible ruling by
the Judge of the city court of Montgomery
that the custer Judgment was not super
coded. 1t was thought that the supreme
court would have adjourned for the term
by that time. If 1t should be that the
Judge of the Montgomery court holds with
GRAY and adiudges the Louisville and
Nashville in contempt of court. 1t is pos
sible for the supreme court or any one
of it's judges 10 prevent a tieing up OF
traffic on the 1877 miles of the best railroad
in the state serving one of the most, If
not the most important constituency In
the state in point of volume of business
freight and passenger.