Ogden v. Baile
| Decision Date | 20 April 1915 |
| Citation | 68 So. 671,69 Fla. 458 |
| Parties | OGDEN v. BAILE et al. |
| Court | Florida Supreme Court |
Rehearing Denied June 7, 1915.
Appeal from Circuit Court, Dade County; Mallory F. Horne, Judge.
Suit by W. B. Ogden against J. C. Baile and others. From an order dissolving injunction and refusing a receiver for defendants complainant appeals. Affirmed.
Syllabus by the Court
Where a temporary injunction has been granted by a court commissioner, without notice to the defendant, and the same is dissolved by the court, after argument by the respective counsel, and an appeal is taken from such interlocutory order, it is incumbent upon the appellant to make it clearly appear to the appellate court that there has been an abuse of judicial discretion; every presumption being in favor of the correctness of the ruling of the court below.
Where application is made to dissolve a temporary injunction upon bill, answer, and affidavits filed by the respective parties the chancellor must be governed by the weight of the evidence, and unless it clearly appears that the ruling upon such motion is against the weight of the evidence, it will not be reversed on appeal.
Where the answer avers matters that grow out of and are connected with the transactions alleged in the bill of complaint, they may be sufficiently responsive to make the dissolution of an injunction depend upon the weight of the evidence under the statute.
COUNSEL Atkinson, Gramling & Burdine, for appellant.
Shutts Smith & Bowen, A. J. Rose, and R. H. Seymour, all of Miami, for appellees.
Appellant brought suit to restrain Baile from disposing of certain notes and mortgages belonging to the appellant that are in the possession of Baile, and to require an accounting from Baile. A receiver was also asked for. A temporary injunction was granted by a court commissioner, an answer was filed, and the injunction was dissolved by the chancellor upon a consideration of the bill, answer, and affidavits. Complainant appealed from the order dissolving the injunction and refusing a receiver.
The bill of complaint alleges that on May 11, 1914, Ogden was the owner of certain described promissory notes and mortgages; that Baile has acted as Ogden's agent in the county; that Baile, having secured the key to Ogden's deposit box in a bank withdrew the said notes and mortgages therefrom, and has failed and refused to deliver the same to Ogden; that Baile has failed and refused to account for all of the money received on account of the notes; that while complainant did not authorize Baile to take the notes and mortgages from the safety deposit box, yet complainant knew in a general way that Baile had said notes and mortgages in his possession and was collecting the interest thereon; that complainant fears that Baile will sell, transfer, assign, hypothecate, or otherwise dispose of said notes and mortgages. By answer the defendant Baile denies that on May 11, 1914, Ogden was the owner of the notes and mortgages----
'and avers on the contrary that the said notes and mortgages had been duly indorsed by the complainant to this defendant in trust, and that at the time alleged in said paragraph and for a long time prior thereto, this defendant had been in possesion of said notes and mortgages by virtue of the said trust, and had been carrying out the terms of said trust in accordance with his instructions, and defendant denies that the complainant was entitled to the possession of said notes and mortgages at the time of the filing of this bill, or at any time since the filing of said bill' 'that the said notes and said mortgages were duly transferred by indorsement to this defendant by the complainant in trust for the following purposes: To be held in trust by the defendant, to collect interest thereon and to pay to one Georgiana Carhart the sum of $1,200 per annum so long as she might live and remain dependent, and that at her death or her ceasing to be dependent, the whole of said securities or their equivalent in cash or other securities should be returned to ...
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