Cohen v. L'engle

• Decision Date: 22 December 1888
• Citation: 5 So. 235,24 Fla. 542
• Parties: COHEN v. L'ENGLE et al.
• Court: Florida Supreme Court

5 So. 235

24 Fla. 542

COHEN v. L'ENGLE et al.

Florida Supreme Court

December 22, 1888

Appeal from circuit court, Duval county; JAMES M. BAKER, Judge.

Upon motion for an order enjoining appellees from prosecuting their suit at law in this cause pending an appeal in same.

Syllabus by the Court

SYLLABUS

Assuming that the supreme court, whose jurisdiction in equity causes is simply appellate, has power to issue a temporary injunction to operate pending the appeal in a cause before it, on an appeal from an order of the circuit court denying the injunction asked for, such power should, however, not be exercised unless it is indispensable to the protection of the rights of the party seeking it.

It should not be exercised where the injunction sought is one in restraint of an action at law, and the facts upon which it is asked will, if sufficient to authorize an injunction, also constitute a good defense by equitable plea to the legal action.

COUNSEL C. P. & J. C. Cooper, for appellant.

E. M L'Engle, for appellees.

OPINION

RANEY J.

On the 23d day of November, 1887, appellant filed a bill in the Duval circuit court against appellees, praying for an account, and for an injunction against the further prosecution by them of an action at law pending in said court against him on certain promissory notes. A motion for a preliminary injunction having been heard upon bill, answer and affidavit, the chancellor made an order denying it, and an appeal to this court was taken by complainants from such order on the same day.

A transcript of the record having been filed in this court, the appellant has entered upon our docket a motion for 'an order enjoining appellees from prosecuting their suit at law mentioned in the record in the above cause pending the appeal.'

The purpose of this motion is, of course, to arrest the proceeding at law until the merits of this appeal shall have been disposed of in its regular turn on our docket.

The authorities cited in support of the motion are High, Inj. (Ed. 1873,) § 893; Chegary v. Scofield, 5 N. J. Eq. 525; Doughty v. Railroad Co., 7 N. J. Eq. 629.

In Chegary v. Scofield there was a decree of foreclosure and sale, and, an execution for the sale of the property having been delivered to the sheriff, (King,) a defendant, he sold the mortgaged premises in a lump, and defendant Scholfield the attorney for the mortgagee, purchased the same. Prior to the delivery of the deed by the sheriff, Chegary, the mortgagor, filed a bill, the averments of which it is unnecessary to recite, praying relief against the sale, that new biddings be allowed, and that the sheriff be enjoined from delivering a deed to Schofield. An injunction was granted, but subsequently, on motion and argument, without answer, dissolved. Shortly after the dissolution of the injunction, and within the 30 days allowed for taking an appeal, the sheriff made and delivered a deed for the premises sold. Chegary appealed from the order dissolving the injunction, within the 30 days, and at the July term, 1845, of the court of errors and appeals, an order was made, on his motion, staying all proceedings, under and by virtue of or consequent upon the sheriff's sale, until the determination of the appeal or the further order of such court. At the October term, 1845, appellees moved to vacate this order.

This decision of the court, as set forth in the syllabus of the case, is as follows: 'An appeal lies from an order dissolving an injunction. The appeal itself does not stay proceedings on the order appealed from. After appeal the court of errors and appeals may stay proceedings on the order appealed from, and this power extends to orders dissolving injunctions.' The order of the July term staying proceedings was vacated at the October term.

The judges who participated in the decision all concurred in the view that the stay order was within the power of the court, but a majority held that it was, considering the circumstances of the case, improperly granted. The chief justice, speaking for the majority, as to the power of the appellate court to make the stay order, held that a chancellor, after an appeal from his decision, may make a temporary order suspending the effects or legal consequences of such decision until the appeal can be heard, (see Jewett v. Dringer, 29 N. J. Eq. 199, where the vice-chancellor continued an injunction, upon terms, pending an appeal from his decree dismissing the bill,) or, in case the chancellor does not do so, that the court of errors and appeals had power to restrain the party from proceeding to execute or act under or in pursuance of the chancellor's decree, or to do what the decree has simply left him at liberty to do. Though recognizing a distinction between a case in which the order appealed from has authorized or created or given a right to a party to do or enjoy, or have something which without such order or decree he could not have done or enjoyed, and the case of an order which has simply left the party at liberty to act as he might have done if no bill had been filed or no injunction issued, he was of the opinion that, after the granting of the injunction, any action of the sheriff in delivering the deed must be held as having been taken and done under permission of or by virtue of the authority of the order dissolving the injunction, and not as if there had never been an injunction, or he was only doing what he had a right to do before any injunction was granted.

He further says: 'We must not forget that we are sitting here as a court of appeal. We can do nothing but review the particular order or decree appealed from, except that where the chancellor has by his decree given a party a right to a thing we may restrain him from using it until we can hear the appeal on the merits; or where the chancellor, by his decree, has loosened a man's hands, we may, by a preliminary order, tie them up again until we can hear the appeal and determine whether he ought to be let loose or not. But surely we cannot either before or after we hear the appeal, make a new and original order more extensive than the scope of the complainant's bill, or its prayer.'

The last sentence of the above paragragh, as we understand it, refers to the fact that the stay order acted upon persons not parties to the record, which fact seems to have controlled the majority of the court in their conclusion as to vacating the stay order.

HALSTED, P., speaking for the minority, opposed to vacating the order, was also of the opinion that the power of the court to stay proceedings extended to an order dissolving an injunction, and that, in a case where no delivery of the deed had been made, the chancellor or the appellate court could, within the time allowed for the appeal, stay the delivery, and that, in case of a delivery within the time allowed for taking an appeal from the order dissolving the injunction, the appellate court could, were an appeal had been taken, lay its hand upon the parties to the suit, so as to prevent them from making advantage from any act of their own, in attempting to avoid the power of the court; that in a gross case it would not suffer itself to be defeated of its discretion.

Doughty v. Railroad Co. was also an appeal from an order dissolving an injunction. The chancellor had granted an order staying until the next sitting of the court of errors and appeals the proceedings to...