Fuller v. Cason

• Decision Date: 07 July 1890
• Citation: 26 Fla. 476,7 So. 870
• Parties: FULLER et al. v. CASON.
• Court: Florida Supreme Court

7 So. 870

26 Fla. 476

FULLER et al. v. CASON.

Florida Supreme Court

July 7, 1890

Appeal from circuit court, Franklin county; D. S. WALKER, Judge.

Syllabus by the Court

SYLLABUS

1. Ordinarily, where the equities of the bill are denied by answer, a preliminary injunction will be refused, or if granted on bill will be dissolved; but the rule is not inflexible, there being an exception in cases of irreparable mischief, and the granting or continuing of injunctions always resting in the sound discretion of the court, to be governed by the nature of the case. And the rule is modified in this state by the statute which authorizes either party to introduce evidence in support or denial of the bill or answer before the injunction shall be dissolved.

2. An affidavit of the complainant which only affirms in general terms the truth of the statements of the bill, and some of it denying the negative statements of the answer, while other portions deny statements not responsive to the bill, is not sufficient evidence under the statute to overcome the denials in an answer of the allegations which constitute the equities of the bill.

3. Where the bill shows no irreparable mischief through the insolvency of the responsible party, and the answer denies the equities of the bill, and the evidence, under the statute, does not overcome the answer, a summary injunction should not be granted.

4. The power of this court, where on the granting of an injunction no bond was required, and no affidavit made of inability to give bond, to remand the case with directions to dissolve the injunction unless the complainant give bond, instead of remanding it unqualifiedly for a dissolution of the injunction, will not be exercised where it appears irrespective of the absence of a bond, that the injunction should not have been granted.

COUNSEL

John W. Malone, for appellants.

Liddon & Carter, for appellee.

OPINION

MAXWELL J.

In this case, which is a suit of appellee against appellants, an injunction was granted upon bill, answer, and affidavit of complainant. The defendants appealed, and assign in this court that the court below erred in granting the injunction because--First, the answers of defendants fully deny all the circumstances upon which the equity in the bill was founded second, no injunction bond was required of complainant.

The material allegations of the bill are, in substance, that one of the defendants, Mary A. Fuller, was indebted to complainant, Cason, for professional services, as attorney, in procuring the establishment of a nuncupative will of Sarah C. Humphreys, by the terms of which sais M. A. Fuller became the sole legatee of certain property, including six or eight hundred head of cattle, and in other litigation concerning the estate of said Humphreys, which led finally to the removal of the administrator of said estate and the appointment of another; that, said M. A. Fuller failing or refusing to pay, complainant, on the 16th of December, 1887, obtained a judgment against her in the circuit court of Franklin county for $365; that the clerk refused the demand of complainant for the issue of execution on the judgment 10 days after the adjournment of the court, and did not issue it till January 20, 1888; that the defendant Patton was acting as the agent of M. A. Fuller in the establishment of the will, and in defending complainant's action for fees, and was fully cognizant of the matters above charged, but, notwithstanding this, on the 5th of January, 1888, pretended to purchase from said Fuller her entire stock of cattle for the pretended consideration of $3,000; that complainant is informed and believes that there was no adequate, full, and valuable consideration for the transfer; that it was made by said Fuller, and accepted by Patton with full knowledge thereof, for the purpose of delaying, defrauding, and hindering complainant in the collection of his said judgment, and that Patton was fully cognizant of this; that the pretended consideration for the sale, as shown by the bill of sale, was that said Patton was to pay the debts of the said Humphreys, and the balance to be paid to said Fuller, making, in the aggregate, $3,000, and complainant avers that said debts were small, and there was administration on the estate, and complainant is informed and believes that said Patton has not paid said debts, and that the bill of sale was not intended to take effect till this was done; that, on the same day of the pretended sale, Patton, in consideration that said Fuller would credit him $1,000 on the pretended amount he was to pay, executed a bill of sale to defendant F. Fuller, son of said M. A. Fuller, of one-third of the cattle, and complainant charges that this was not a bona fide purchase by said Fuller, and that the transaction was intended by the three parties to hinder, delay, and defraud complainant in the collection of his judgment.

The bill further alleges that afterwards, execution having been issued on complainant's judgment, and become a lien upon said property so pretended to have been purchased by Patton, viz., March 31, 1888, said Patton executed to defendant W. H. Neel a mortgage on all his interest in the cattle, but complainant charges that said Neel had at that time full knowledge of the foregoing facts, and was not a purchaser without notice; and that said Neel recently pretends that he has purchased the interest of F. Fuller in the cattle, but if he did so purchase he had knowledge that the title of said Fuller was fraudulent and void.

And it then alleges that Patton and Neel, under some private arrangement between them and the other defendants, are killing and selling the cattle in market for beef; that they have already slaughtered 100 head, and, as complainant is informed and believes, are selling about 20 per month, and he has reasonable ground to fear that if said defendants are not restrained from killing and disposing of said cattle there will not be sufficient to pay his demand; that said M. A. Fuller has no other property subject to execution sufficient to satisfy complainant's judgment; and he claims that, as attorney, he has a lien on said cattle independent of the lien of his execution and judgment.

The defendants M. A. Fuller and F. Fuller, answering jointly admit the sales as alleged in the bill, but deny that they were made without valuable and sufficient consideration, or for a pretended consideration, and say they were made in good...