Board of Water and Sewer Com'rs of City of Mobile v. Spriggs

Citation146 So.2d 872,274 Ala. 155
Decision Date25 October 1962
Docket Number1 Div. 877
PartiesBOARD OF WATER AND SEWER COM'RS OF the CITY OF MOBILE et al. v. W. G. SPRIGGS et al.
CourtSupreme Court of Alabama

Hardy B. Smith of Gaillard, Gaillard & Smith, Mobile, for appellants.

Albert S. Gaston, Mobile, for appellees.

COLEMAN, Justice.

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'.

'2. That each bidder thereon was required, as a condition of his bid, to file with the Defendants a bid bond in the amount of ten percent (10%) of his bid.

'3. That this was the second time that the Defendants had advertised for bids for said construction, all bids previously submitted at the first advertising therefor having been rejected because in the opinion of the Defendants they were too high.

'4. That three bids were submitted as a result of the said advertising in June, 1959, namely: W. R. Mitchell, in the amount of $78,948.86; Campbell Plumbing & Heating Company, in the amount of $69,245.06; and Complainants' in the amount of $44,303.39.

'5. That Complainants deposited with Defendants along with their bid a bid bond required as aforesaid, in the amount of $4,430.34.

'6. That after submission of his (sic) bid Complainants discovered that in making their computations they had inadvertently failed to follow the route for the laying of the outfall sewer line as set forth in the specifications, and had, instead, based his (sic) computation of cost there $0of on a different route.

'7. That it would be much more expensive for them to perform the work along the route specified than along the route contemplated by them when they submitted his (sic) bid.

'8. That his (sic) bid is actually below what it would cost them to perform the work in accordance with the specifications.

'9. That they explained the entire situation to the Defendants and asked that they be relieved of their bid on the grounds that it was an honest mistake on their part.

'10. That the Defendants have refused to relieve them of their bid, have informed them that they are bound by it, and have threatened to forfeit their bid bond if they do not perform their contract.

'11. That the Defendants have sustained no injury by Complainants' mistake and Complainants have agreed to pay all expenses of said second advertising and of a re-advertising for bids.

'12. That to require Complainants to comply with their said bid, or, in lieu thereof, to forfeit their said bod bond, would constitute a hardship on them amounting to an injustice.

'13. That the forfeiture of their bid bond would cause Complainant (sic) irreparable injury.

'14. That Complainants have no adequate remedy at law.

'15. Complainants offer to do equity in this, that they submit to the jurisdiction of this Court and agreed to abide by all orders and decrees rendered herein.'

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:

'1. The allegations of the bill show only that the bid of the Complainants was the result of a mistake on their part.

'2. That no mistake or error on the part of the Respondent Board or its members or its engineers is alleged.

'3. That no facts are alleged to show any duty on the part of the Respondents to reject the bid of the Complainants or to relieve the Complainants from said bid.

'4. No facts are alleged to show that the amount of the Complainants' bid was unreasonable in relation to the specifications furnished Complainants by the Respondents.'

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:

'While [Section 3121 of] the Code of 1907 abandons the motion to dismiss a bill for want of equity and puts the respondent to a general demurrer, yet the right to move to dissolve an injunction for want of equity in the bill is still preserved by section 4526, and which was made in the present case. The present bill avers no facts whatever, and falls far short of the requirements as to equity pleading (Seals v. Robinson, 75 Ala. 363), and is, therefore, wanting in equity. It is true that, in passing upon the equity of a bill, its equity will be sustained, if the facts, whether well or poorly pleaded, make out a case for equitable relief, and all defects as to manner or form of pleading will be considered as made; but this presumption does not extend to the addition of facts not set forth. The present bill avers no facts, and all intendments may be resolved in favor of the manner or form of pleading, and it would still be wanting in equity.' 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...

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