Palmetto Guano Corp. v. Green

The opinion of the Court was delivered by

This is an appeal from an order of Judge Sease enjoining and restraining the appellants from collecting the dividends on 140 shares of stock in the Ice & Fuel Company, and directing the same to be paid in the Court pendente lite. After the pleadings were made up, upon a rule to show cause his Honor granted an injunction to restrain the appellants from disposing of the said stock. Without any notice to the appellants, he granted the order appealed from. This order *112 is the only order before the Court to be disposed of. The exceptions raise the following questions:

“(A) That the complaint was improperly verified.

“(B) That the relief granted was not asked for in the complaint. See Ford v. Calhoun, 53 S. C., Ill; 30 S. E., 830.

“(C) That no notice was given appellants.

“(D) That Circuit Judge Sease erred in granting the ' temporary injuncton injunction of July 7, 1925, and in refusing to vacate and dissolve that order on October 31, 1925; and that it would have been error in both instances, even if the respondent had filed a properly verified complaint, had asked in the complaint for the relief which was granted, and had given appellant the notice which is required.”

The complaint in this case was for foreclosure. It improperly joined another cause of action in the complaint, and upon the complaint with two causes of action improperly joined, the order of injunction forbidding the appellants to dispose of the stock was issued. Section 418, Code of Civil Procedure 1922, prescribes the manner in which a complaint shall be verified as follows:

“When the pleading is verified by any other person than the party, he shall set forth in the affidavit his knowledge, or the grounds of his belief on the subject, and the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof.”

The exceptions as to the verification of the complaint must be sustained. The words “any officer thereof” cannot have reference to an employee, clerk, agent, or local manager.

The fact that the respondent thinks the land mortgaged will not pay his debt, and that, after the sale, there may be judgment for deficiency, does not entitle them to an injunction as to the stock and dividends. He cannot obtain by injunction something that will tie up *113 a. man’s property. In order to obtain such an injunction as is in this, case or any similar case, it would be necessary to make such a showing as would warrant an attachment as provided for in the Code.

His Honor should not have passed the order appealed from without notice to the appellants under Sections 484 and 468, Civil Code of 1922, and Rule 57 of Circuit Court Rules. Rice v. Mahaffey, 9 S. S. C., 281.

The order of Judge Sease appealed from is reversed.