Godwin v. Phifer
| Decision Date | 11 June 1906 |
| Citation | 41 So. 597,51 Fla. 441 |
| Parties | GODWIN et al. v. PHIFER et al. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Alachua County; James T. Wills, Judge.
Action by W. B. Phifer and others against Minnie F. Godwin, as administratrix of the estate of J. J. Godwin, deceased, and others. From a decree in favor of complainants, defendants appeal. Reversed, with directions to dismiss bill.
Syllabus by the Court
It is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing. This principal applies to all bills in equity, but is especially applicable to bills seeking an injunction; the rule being that the title or interest of the complainant and the facts upon which he predicates his prayer for such relief must be stated positively, with clearness and certainty. The bill must state facts, and not opinions or legal conclusions.
Where an application is made to the court for a temporary injunction or restraining order without notice to the defendant, the allegations in the bill should be even more carefully scanned and considered than when the defendant has been served with notice and has the opportunity of resisting the application. Before granting a temporary injunction or restraining order without notice, the court should be satisfied that a clear case is made by the bill therefor, and also that it has been clearly made to appear that it is a case of urgent necessity and one in which irreparable mischief will be produced if the aid of the court is denied.
An affidavit to or an allegation in a bill for an injunction asserting simply the legal conclusion that notice to the defendant of the application for injunction will accelerate the injury apprehended, is not a sufficient excuse, and furnishes no reason, for dispensing with notice. To justify the granting of an injunction ex parte and without notice the allegations of the sworn bill or accompanying affidavit must state facts showing how and why the giving of notice will accelerate or precipitate the injury complained of, from which the court can determine for itself whether the giving of notice will, or is likely to, so result, and such facts must make it manifest to the court that the giving of notice of the application will, or is likely to, have such result.
Not only must the allegations in the bill for an injunction be clear, direct, and positive, but they must be verified by an affidavit, which must also be direct and positive; and, where any of the material allegations in the bill are stated upon information, there should be annexed to the bill the additional affidavit of the person from whom the information is derived, verifying the truth of the information thus given.
The insolvency of the debtor is never a sufficient reason of itself for the exercise of the extraordinary power of the court by way of injunction. There must be some other equitable ground combined with insolvency.
The failure of a purchaser of timber to pay the balance of the purchase money therefor at the time stipulated in the contract does not of itself furnish sufficient ground for a cancellation of the contract by a court of equity.
The writ of injunction is an extraordinary, not an ordinary everyday writ, and it should never be granted lightly, but cautiously and sparingly, and notice should always be required to be given in accordance with equity rule 46 unless the provisions therein for dispensing with notice have been strictly followed. The writ of injunction is a highly beneficial writ, but great care should be exercised in awarding it, lest it be turned into an instrument of oppression and injury.
Even where all the equities of the bill are denied by the answer, it is not a matter of course to dissolve the injunction; both the granting and continuing of injunctions resting largely in the sound judicial discretion of the court, to be governed by the circumstances of the case. But, where an abuse of this judicial discretion is clearly made to appear, it is the duty of an appellate court to interfere.
If it is plainly apparent that the bill is without equity, an injunction should not be granted in the first instance; but, if granted, it should be dissolved at the earliest opportunity by the court, and the bill ordered dismissed.
When a cause is set down for a hearing upon the bill and answer, all the averments of the answer are to be taken as true; and where the answer contains the usual general denial found in answers in chancery, and contains no admission of certain material allegations in the bill, such allegations cannot be assumed to be true--the burden being upon the complainant to prove such allegations, as well as the matters denied in the answer.
W. S. Broome and J. M. Rivers, for appellants.
W. W Hampton, for appellees. On the 25th day of September, 1905, the appellees filed their bill in chancery in the circuit court in and for Alachua county against the appellants, alleging therein, in substance, that on the 23d day of May, 1904, H. L. Phifer and J. A. Phifer, two of the appellees, and J. W. Phifer, since deceased, made and entered into a certain contract with J. J. Godwin, since deceased, a copy of which contract is attached to the bill as an exhibit and made a part thereof, and which is as follows:
'State of Florida, Alachua County.
'This contract, made and entered into by and between J. W. Phifer, H. L. Phifer and J. A. Phifer, of the county and state aforesaid, parties of the first part, and J. J. Godwin, of the county of Alachua and state of Florida, party of the second part, witnesseth: That the said parties of the first part, for and in consideration of the sum of thirty-five cents per tree for each sound pine tree measuring fourteen inches and upward minimum diameter measure at the top of the stump two feet above the ground, to be paid as hereinafter provided, have bargained, sold, granted, and conveyed, and by these presents do bargain, sell, convey, and grant, unto the said party of the second part, and to his heirs and assigns, all the pine timber over fourteen inches minimum diameter measure at the top of the stump two feet above the ground, situate and being upon the following described lands lying and being in the county of Alachua and state of Florida, and more particularly described as follows, to wit: The west half of the northwest quarter and the west half of the southwest quarter, section 5, township 10 south, range 22 east; also lots one and two, section 6, township 10 south, range 22 east; also the west half of the southwest quarter of section 4, township 10 south, range 22 east, and all fractional section 31, township 9 south, range 22 east, that lies within the Arredondo grant--and other lands of J. W. Phifer, containing in all about nine hundred and seventy-seven acres.
'And it is hereby agreed that the party of the second part, his heirs or assigns, shall have full right of ingress and egress in and upon the said land for the term and space of two years from July 1, A. D. 1904, for the purpose of cutting and removing the said timber; and it is hereby further agreed that the said timber shall be cut off each forty-acre tract before proceeding to cut timber off the other lands, except that the party of the second part may cut a few trees at the time to fill special orders from any parts of the land herein described.
'And it is further agreed that the sums of money to become due upon this contract shall become due and payable as follows, to wit: The sum of $500 to be paid cash, the receipt whereof is hereby acknowledged by the parties of the first part herein, and the further sums to become due hereon shall be paid as fast as the timber is cut from the said lands; the same to be inspected and adjusted between the parties hereto monthly at the option of the parties of the first part, and the full sum and amount to become due upon this contract to be paid on or before the first day of July, A. D. 1905.
'The covenants herein contained shall bind the parties hereto mutually.
'In witness whereof, the parties hereto have hereunto set their hands and affixed their seals on this 23d day of May, A. D. 1904.
'Signed, sealed, and delivered in presence of us as witnesses.
'J. G. Kellum.
'J. M. Rivers.'
The bill further alleges the death of J. W. Phifer and that the appellees are his only heirs at law, there having been no adminisstrator appointed, because there were no debts against his estate; that J. J. Godwin went upon the lands and cut a large amount of timber therefrom and made certain payments on the timber, aggregating, including the $500 cash payment, the sum of $1,201.75; that on the 27th day of July, 1905, J. J. Godwin died, and Minnie F. Godwin was duly appointed administratrix of his estate; that after the appointment of the administratrix the appellees and the attorney for the administratrix engaged two men to count the balance of the timber then growing and standing upon the lands and estimate the value thereof, showing balance due on the contract, which was found from the estimates of the appraisers to be $1,159, which amount the administratrix through her attorney, promised to settle at once; that subsequently the administratrix effected a sale of the properties of the estate of J. J. Godwin, deceased, and attempted to sell the timber contract at public outcry to J. A. Maultsby and N. A. Mathews, two of the appellants; that...
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