Board of Water and Sewer Com'rs of City of Mobile v. Spriggs
Citation | 146 So.2d 872,274 Ala. 155 |
Decision Date | 25 October 1962 |
Docket Number | 1 Div. 877 |
Parties | BOARD OF WATER AND SEWER COM'RS OF the CITY OF MOBILE et al. v. W. G. SPRIGGS et al. |
Court | Supreme Court of Alabama |
Hardy B. Smith of Gaillard, Gaillard & Smith, Mobile, for appellants.
Albert S. Gaston, Mobile, for appellees.
This is an appeal by respondents from a decree overruling motions to discharge and to dissolve a temporary injunction. Errors severally assigned are that the court erred in overruling each motion, respectively.
Respondents moved to discharge the injunction, 'because it affirmatively appears from the Bill of Complaint that the said bill is not properly verified as required by statute and rules of this Court.'
It is settled that a verification wherein affiant affirms merely that certain facts are, 'true to the best of his knowledge, information and belief,' means nothing 'more than the affiant believes the allegations of the bill to be true, though he has neither knowledge nor information of their truth,' and, 'an affidavit of belief in their truth simply amounts to nothing.' Burgess & Co. v. Martin, 111 Ala. 656, 20 So. 506; Brooks v. Everett, 271 Ala. 380, 124 So.2d 100.
The verification in the instant case is merely that affiants say that the facts stated in the bill 'are true and correct to the best of their knowledge, information and belief.' The verification is insufficient.
Complainants reply, however, that the motion to discharge did not point out the defect in the verfication with sufficient certainty, and, therefore, the motion to discharge was overruled without error, citing Barnett v. State ex rel. Simpson, 235 Ala. 326, 179 So. 208.
In Barnett, on appeal from decree, which, inter alia, overruled demurrer to the bill and motions to dissolve and to discharge a temporary injunction, this court held that the trial court did not err in overruling a ground of demurrer which attempted to question the verification of the bill. This court said: 'That ground of demurrer * * * did not point out the defect in the verification with sufficient certainty.' 235 Ala. at page 327, 179 So. at page 210.
We have examined the record in Barnett. The ground of demurrer charging defect in the verification recites as follows:
'(3) Said bill or petition is not verified as required by law.'
The motion to discharge in the instant case is to the same effect. If the ground of demurrer in Barnett was lacking in certainty, then the instant motion to discharge was also lacking in certainty.
In Barnett, the lack of certainty was in the ground of a demurrer while the lack here is in the ground of a motion to discharge. We see no reason, however, why a motion to discharge may be less certain than a demurrer. As to certainty in pointing out a defective verification, both demurrer and motion should conform to the same standard because both constitute nothing more or less than a pleading which points out a defect in the pleading of the opposite party. In this respect, they stand on the same ground.
We have noted further in the Barnett record that the motion to discharge in that case contained several grounds which did point out the defect in the verification with certainty, e. g., '(5) The affidavit does not state the reason for B. F. Weathers making it instead of the officer filing the suit.' This court held that the motion to discharge in Barnett, was also overruled without error, but not because the motion failed to point out the defect in the verification with sufficient certainty. The holding was that the motion to discharge, as to the defect in the verification, 'was waived, as a matter of law, by defendant's filing his answer and going to trial on the merits of the case.' 235 Ala. at page 328, 179 So. at page 210. There was no such waiver of the motion to discharge in the instant case.
We hold that the instant motion to discharge failed to point out the defect in the verification with sufficient certainty and, for that reason, was overruled without error.
Complainants are two individuals who appear to have acted jointly in bidding to perform the work on a construction job. Respondents are the Board of Water and Sewer Commissioners of the City of Mobile and the members of the board. The bill of complaint recites:
'1. That in the month of June, 1959, the Board of Water and Sewer Commissioners of the City of Mobile, Alabama advertised for bids for the construction of a project known and described as 'Outfall Sewer--Alpine Hills Subdivision to Three Mile Creek Trunk Sewer--Project No. 276-A-6 And Water and Sanitary Sewers--Alpine Hills Subdivision, Plat VIII'.
in the amount of $44,303.39.
mistake and Complainants have agreed to pay all expenses of said second advertising and of a re-advertising for bids.
The prayer is to restrain respondents from forfeiting complainants' bid bond and, on final hearing, to declare the bid bond null and void and to permanently restrain its forfeiture by respondents.
On an ex parte application by complainants, the court ordered that a temporary restraining order issue as prayed upon complainants' making bond, conditioned as provided by law, for $350.00. Bond was made and temporary injunction issued. Respondents moved to dissolve on the ground that there is no equity in the bill for several reasons, among them being the following:
This court has held that; under § 4526, Code 1907, which, without material change is § 1052, Title 7, Code 1940; a respondent may move to dissolve an injunction for want of equity in the bill. The court said:
Woodward v. State, 173 Ala. 7, 13, 55 So. 506.
A bill without equity will not support an injunction of any character, under any circumstances. McHan v. McMurry, 173 Ala. 182, 55 So. 793; Hamilton v. Alabama Power Company, 195 Ala. 438, 70 So. 737; Pearson v. Duncan & Son, 198 Ala. 25, 73 So. 406, 3 A.L.R. 242; Coley v. English, 204 Ala. 691, 87 So. 81; Wallace v. Lindsey, 270 Ala. 401, 119 So.2d 186; Brotherhood of Locomotive F. and E. v. Hammett, Ala., 144 So.2d 58.
The rule is that the equity of a bill must be sustained on the facts alleged and not on those inferred. The equity of a bill must rest on facts...
To continue reading
Request your trial-
MJ McGough Company v. Jane Lamb Memorial Hospital
...239, 442 P.2d 197 (1968); Kenneth E. Curran, Inc. v. State, 106 N.H. 558, 215 A.2d 702 (1965); Bd. of Water & Sewer Commissioners of Mobile v. Spriggs, 274 Ala. 155, 146 So.2d 872 (1962); City of Baltimore v. DeLuca-Davis Const. Co., 210 Md. 518, 124 A.2d 557 (1956); State Highway Commissio......
-
Willowbrook Country Club, Inc. v. Ferrell
...without equity will not support an injunction of any character under any circumstances. Board of Water and Sewer Com'rs of City of Mobile v. Spriggs, 274 Ala. 155, 146 So.2d 872, and cases cited; Wallace v. Malone, 279 Ala. 93, 182 So.2d 360; Martin's Grill Meats, Inc. v. Retail, Wholesale ......
-
Geodesic Consulting, LLC v. Compass Bank
...when it is discovered, he cannot under these conditions claim an enforceable contract.(quoting Bd. of Water & Sewer Comm'rs of the City of Mobile v. Spriggs, 146 So. 2d 872 (Ala. 1962)). The Court is not convinced that the P.O. issued by Compass reflecting a start date of May 1 was "out of ......
-
Crenshaw County Hosp. Bd. v. St. Paul Fire & Marine Ins. Co.
...party is cognizant of the mistake. Townsend v. McCall, 1955, 262 Ala. 554, 80 So.2d 262, 266; Board of Water & Sewer Com'rs of City of Mobile v. Spriggs, 1962, 274 Ala. 155, 146 So.2d 872, 876. The consideration named by Waller was not out of all proportion to the value of the subject. It w......