Gillespie v. Chapline

Supreme Court of Florida January 15, 1910

Gillespie v. Chapline, 59 Fla. 500 (Fla. 1910)

Cockrell, Hocker, Iill, Parki, Shackleford, Taylor, Whitfield

Opinion of the Court

Shackleford, J.

(after stating the facts.)

This is another case in which the appellee has not favored us with a brief. See Mizell Live Stock Co. v. J. J. McCaskill Co., 59 Fla. 322, 51 South. Rep. 547, and authorities there cited.

We have several times, within the last few years, had occasion to discuss the practice of granting restraining orders without notice and have laid down the principles which should regulate the same, so shall content ourselves with referring to some of such cases. See especially God*509win v. Phifer, 51 Fla. 441, 41 South. Rep. 597, where the subject is fully discussed and authorities collated. Also see Hall v. Horne, 52 Fla. 510, 42 South. Rep. 383; Savage v. Parker, 53 Fla. 1002, 43 South. Rep. 507; Builders Supply Co. v. Acton, 56 Fla. 756, 47 South. Rep 822. We have also held that the practice of granting a restraining order and allowing time in which to file an indemnity bond is unauthorized. Hall v. Horne, supra, and Savage v. Parker, supra. Tested by the principles enunciated in the cited cases, it is very doubtful, to say the least of it, if the allegations in the bill and appended affidavits warranted the granting of the restraining order in the first instance, especially without notice to the defendants. We call attention to the fact that the bill was brought by the complainant as clerk and treasurer of the municipality, not as a citizen and tax payer.

The allegations as to the dishonest or fraudulent acts which are sought to be charged against the defendants are couched in vague, indefinite and general language. See McClinton v. Chapin, 54 Fla. 510, 45 South. Rep. 35, S. C. 14 Ann. Cas. 365.

It is also alleged in the bill that the complainant had removed the books of account from the town of Sarasota to another municipality, though by what legal right or authority, we are not advised. We are also at a loss to understand under what principle of equity jurisprudence the defendants could be restrained or enjoined from removing or suspending the defendant from his official position.

Even if we should pass by all these matters, when it was plainly made to appear that the restraining order as made should not have been granted in the first instance for any of the reasons discussed in the cited cases, or which we have mentioned, it should have been dissolved *510by the court at the earliest opportunity. See tlje authorities already cited.

While1 it is not a matter of course to dissolve a restraining order where all the equities of the bill are denied by the answer, as a general rule, this should be done. See Godwin v. Phifer, supra, and Robbins v. White, 52 Fla. 613, 42 South. Rep. 841.

We are clear that in the instant case, after a careful examination of all the pleadings that the court erred in refusing to grant the motion to dissolve the1 restraining order, therefore it necessarily follows that such interlocutory order must be reversed, and it is so ordered.

Whitfield, C. J., and Cockrell, J., concur. Taylor, P. J., and Hocker and Parki-iill, J. J., concur in the opinion.

Reference

Full Case Name: J. Hamilton Gillespie, as Mayor, &c. v. J. B. Chapline, Jr., as Clerk and Treasurer, &c.
Cited By: 11 cases
Status: Published
Syllabus: 1. It is the duty of counsel for defendant in error or appellee to file in this court a brief, in support of the correctness of the judgment or decree rendered by the trial court which has been brought here for review. 2. It is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing. This principle applies to all bills in equity, but is especially applicable to bills seeking an injunction, the rule being that the title or interest of the complainant and the facts upon which he predicates his prayer for such relief must be stated positively, with clearness and certainty. The bill must state facts and not opinions or legal conclusions. 3. When an application is made to the court for a temporary injunction or restraining order, without notice to the defendant, the allegations in the bill should be even more closely scanned and considered than when the defendant has been served with notice and has the opportunity of resisting the application. Before granting a temporary injunction or restraining order, without notice, the court should be satisfied that a clear case is made by the bill therefor, and also that it has been clearly made to appear that it is a case of urgent necessity and one in which irreparable mischief will be produced if the aid of the court is denied. 4. An affidavit to or an allegation in a bill for an injunction asserting simply the legal conclusion that notice to the defendant of the application for injunction will accelerate the injury apprehended is not a sufficient excuse and furnishes no reason for dispensing with notice. To justify the granting of an injunction ex parte and without notice the allegations of the sworn bill or accompanying affidavits must state facts showing how and why the giving of notice will accelerate or precipitate the injury complained of or apprehended, from which the court can determine for itself whether the giving of notice will, or is likely to, so result, and such facts must make it manifest to the court that the giving of notice of the application will, or is likely to, have such result. 5. The practice of granting a restraining' order and allowing time in which to file an indemnity bond is unauthorized. 6. Where dishonest or fraudulent acts are sought to be charged against defendants, the allegations relating thereto should be clear, positive, specific and direct, and not couched in vague, indefinite and uncertain language. 7. While it is not a matter of course to dissolve a restraining order where all the equities of the bill are denied by a sworn answer, as a general rule, this should be done. Whenever it is plainly made to appear to the court that a restraining order should not have been granted in the first instance, for any reason, it should be dissolved by the court at the earliest opportunity.