Anderson v. Tower Amusement Co.

• Decision Date: 16 February 1935
• Citation: 118 Fla. 437,159 So. 782
• Parties: ANDERSON et al.
• Court: Florida Supreme Court

159 So. 782

118 Fla. 437

ANDERSON et al. v. Florida Supreme Court ^[*]

February 16, 1935

En Banc.

Suit by Marie W. Anderson and others against the Tower Amusement Company and others. Interlocutory injunction was denied, and complainants appeal and apply to the Supreme Court for a constitutional writ of injunction.

Constitutional writ awarded. Appeal from Circuit Court, Polk County; H. C Petteway, judge.

COUNSEL

Thomas H. Anderson, of Miami, and Suton, Tillman & Reeves, of Tampa for appellants.

Wilson & Boswell and Lennard O. Boynton, all of Bartow, for appellees.

OPINION

DAVIS Justice.

Complainant below is the appellant here. The bill was one for injunction temporary and permanent, was sworn to, and was uncontested either by affidavit, motion to dismiss, or answer. It is alleged in the bill that Marie W. Anderson, the owner of real estate, had leased the same for a five-year term subject to a restrictive covenant that the premises should not be underlet or rented without consent of the lessors in writing to the transfer of the lease. It was further alleged that pursuant to a consent in writing duly given by lessors the lease had been transferred by complainant's lessee, one Gore, to M. C. Talley for and on behalf of Sparks Theatre Interests; that pursuant to the assignment of the Gore lease to Talley, Talley had gone into possession of the premises as sublessee; that notwithstanding the rights of complainant, as landlord, to have the premises peaceably enjoyed by complainant's sublessee Talley, the defendant, one D. V. Marquis, had forcibly interfered with Talley's possession by certain acts of violence and that Marquis had retained possession thereof in violation of plaintiff's rights until enjoined by order of the court. The prayer was that the defendants Tower Amusement Company and D. V. Marquis should be enjoined from interfering in any wise with the possession of Talley as complainant's tenant.

The chancellor denied an interlocutory injunction. Complainants thereupon appealed and have applied to this court for a constitutional writ of injunction under section 5 of [118 Fla. 439] article 5 on the ground that the issuance of such constitutional writ of injunction in favor of the Andersons, as complainants, having been improvidently and erroneously refused by the chancellor below, the granting of appellate interlocutory relief is indispensable in order to protect complainants' (appellants') rights pending the appeal.

In our recent case of Wingate v. Mach, 114 Fla. 380, 154 So. 192, text 193, we said:

'Under section 5 of article 5 of the Constitution, the Supreme Court has jurisdiction to issue all writs 'necessary' and all writs 'proper' to the 'complete exercise' of its jurisdiction. As will be noted from the language of the Constitution itself, the jurisdiction of the Supreme Court to issue constitutional writs is not limited to those writs merely which are necessary to protect its jurisdiction, but may extend to the issuance of such writs as may be proper 'to the complete exercise' of its jurisdiction. It is therefore within the province of this court to grant a writ of the character prayed for by appellants if it be found by this court that the granting of such a writ is either 'necessary' or is 'proper' to the complete exercise of its jurisdiction to decide the matter brought here on appeal, which is the order of the circuit court denying the appointment of an administrator pendente lite, receiver, or injunction as prayed. Thus the 'complete exercise' of the jurisdiction of the Supreme Court to reverse the order on appeal may, in a proper case, warrant it in making a present order which will accomplish that which the lower court has refused to do if such should be found to be necessary or proper.

'But, as in all other cases involving the right of the Supreme Court to interfere with the orderly administration of justice in the circuit court, extraordinary relief of such drastic character as that herein prayed for by appellants, should never be granted except in cases of extreme urgency where it is made to appear to the appellate court that the constitutional writ prayed for should be issued in advance of determination of an appeal on its merits in order that appellant may not suffer any irreparable injury during the interim between the entry of appeal and the final decision of the appellate court.'

It appears from a certificate of the chancellor that he denied the interlocutory injunction applied for by appellant Marie W. Anderson, mainly because of the fact that an injunction of the same character had already been issued by him in another case against the same defendants and enjoining the same threatened injury, namely, the interference by Marquis with Talley's possession of the leased premises as subtenant of the complainant landlord, but as to which injunction the appellants in this case were not parties.

In Taylor v. Florida East Coast R. Co., 54 Fla. 635, 45 So. 574, 16 L. R. A. (N. S.) 307, 127 Am. St. Rep. 155, 14 Ann. Cas. 472, it was held by this court that if the allegations of a bill for injunction are sufficient, and the evidence in support thereof is ample to warrant the granting of a temporary injunction in a bill brought to protect complainant against irreparable injury from the violation of his contract rights that would be susceptible of specific enforcement at his instance, and no sufficient defense is made, an order denying a temporary injunction will be reversed.

If, in the present case Marie W. Anderson, as the landlord, was entitled...