Williams v. Jones

• Citation: 40 S.E. 881,62 S.C. 472
• Parties: WILLIAMS et al. v. JONES.
• Decision Date: 21 February 1902
• Court: United States State Supreme Court of South Carolina

40 S.E. 881

62 S.C. 472

WILLIAMS et al.

v.JONES.

Supreme Court of South Carolina.

Feb. 21, 1902.

APPEALABLE ORDER—INJUNCTION.

1. An interlocutory order restraining a defendant from operating her ginnery is appealable where it affects the merits, and also under Act 1901 (23 St. at Large, p. 023), providing that the supreme court may review an interlocutory order granting, continuing, or refusing an injunction.

2. An injunction will not be granted at the instance of an owner of a business to restrain an adjoining owner from carrying on her business before it has been determined that such business is a nuisance, complainant having given no bond.

Appeal from common pleas circuit court of Williamsburg county; Buchanan, Judge.

Action by A. H. Williams & Co. against Ella F. Jones. From an order restraining defendant from running her ginnery, she appeals. Reversed.

Wilcox & Wilcox, for appellant

W. L. Bass, for appellees.

POPE, J. The Honorable O. W. Buchanan, as judge of the Third judicial circuit, on the 30th day of September, 1901, on an ex parte application by the plaintiffs, granted the fol lowing order: "Upon hearing read the verified complaint in the above-stated action, it is ordered that the defendant above named show cause before me, at Conway, S. C, on Tuesday, October 8, 1901, at 11 a. m., or as soon as possible thereafter as counsel can be heard, why the order and injunction therein prayed for shall not issue, and that in the meantime the said defendant, her agents and servants, be, and they are hereby, enjoined from maintaining and operating the ginnery mentioned in the complaint in above-stated action, and that such return, if any, that said defendant may have to this rule, be served on W. L. Bass, counsel for plaintiffs, at least four days prior to the hearing thereof."

Within the required time the defendant appealed from such order upon the following grounds: "(1) That his honor erred in granting said order of injunction, in that the complaint on which it is solely based does not state facts sufficient to constitute a cause of action, and it appears on the face thereof that the plaintiffs have no equity, (a) Material and necessary allegations thereof are not alleged with sufficient certainty and defi-niteness, but, on the contrary, are alleged on information and belief only, and the grounds of such belief and sources of information are not disclosed therein, (b) It appears on the face thereof that the right of the plaintiffs to the relief sought Is at least doubtful, and the existence of the fact of nuisance has never been determined by the verdict of a jury or established by the judgment of a competent court, (c) It appears on the face thereof that the plaintiffs purchased the tobacco warehouse two years after the erection of the ginnery complained of, with the knowledge of its existence, and they cannot now be heard to complain of the natural and usual discomforts of proximity to running machinery to an operating ginnery, (d) It appears on the face thereof that the plaintiffs, and those under whom they claim and from whom they purchase, have not used due diligence in seeking the relief asked for, but, on the contrary, it so appears that the plaintiffs, and those from whom they purchased, acquiesced in or permitted the defendant to spend large sums of money in the erection of the ginnery complained of, and In its operation from 1898 to the time of the commencement of this action, and large additional sums in repairing the said machinery preparatory to the commencement of operations for the present season, (e) It does appear on the face thereof that the maintenance of the ginnery complained of is not a nuisance per se, and the alleged threatened injury is not imminent and impending, but, on the contrary, is uncertain, indefinite, and doubtful, and, in any event, is productive of only possible injury, (f) It does not appear on the face thereof that the ginnery complained of is in itself a nuisance, but only that in certain contingencies it becomes so; and it does not further appear that theright or the fact of nuisance has been decided at law, nor does it further appear that irreparable mischief, injury, or damage iu imminent, and then impending, threatened, or probable, (g) No fact or circumstance is alleged showing, or tending to show, that the ginnery complained of is a nuisance, or that It is operated otherwise than as cotton gins are usually run, or that any legal right of the plaintiffs is infringed by its maintenance, or that anything had transpired, or that any act has been committed by defendant, or any one on her behalf, since the purchase by plaintiffs of the said tobacco warehouse, increasing the alleged hazards of the said property of the plaintiffs, or the alleged annoyance to the occupants of the same, or that the circumstances are other than they were on the day the said property was so purchased by the plaintiffs, (h) It appears on the face of the complaint that the plaintiffs have adequate remedy, and that the alleged mischief is capable of compensation in damages. (i) It does not appear on the face thereof that the defendant is insolvent. (2) His honor committed abuse of discretion in granting said order of injunction, and in stopping the operation and maintenance of said ginning plant: (a) Without requiring the plaintiffs to give bond, (b) In denying in an ex parte hearing the right of defendant to use her costly property at a period of the year when only it can be valuable to her, upon allegations in the complaint stated only on information and belief, and which stated no probable act of damage, but only possible discomfort and danger that might ensue to plaintiffs and their patrons in trade, contingent upon the blowing up of a steam boiler and the like, (c) In enjoining the prosecution of and destroying one business enterprise, that of ginning cotton, for the benefit of another, that of selling tobacco, upon the idea that the ordinary running of an engine twenty-seven feet away jarred the ground, or that at some future day the boiler might explode and injure some one, and that plaintiffs at some future day might sue and recover judgments therefor, or that the building might burn, said allegations showing no nuisance per se, but possible and unusual consequence, (d) In enjoining the prosecution of the lawful business of ginning cotton upon the sole allegation, in effect, that it was unpleasant to plaintiffs; there being nothing alleged as to defendant's business of an unusual nature, calculated to show it to be a nuisance per se. (e) In effect holding that it is unlawful for defendant to conduct a ginning business in the vicinity of a tobacco warehouse, (f) In enjoining a ginning business because possibly dangerous and inconvenient to a warehouse business, when it appears from allegations in the complaint that subsequent to the establishment of a ginning plant plaintiffs...