Peck v. Spencer

• Citation: 7 So. 642,26 Fla. 23
• Parties: PECK et al. v. SPENCER.
• Decision Date: 06 June 1890
• Court: Florida Supreme Court

7 So. 642

26 Fla. 23

PECK et al. v. SPENCER.

Florida Supreme Court

June 6, 1890

Appeal from circuit court, Volusia county; JOHN D. BROOME, Judge.

Syllabus by the Court

SYLLABUS

1. The bill alleges that complainant has caused a suit to be instituted in the name of the state of Florida, upon complainant's relation, against B., to test the alleged election of B. as mayor of the town of D., and that complainant is a tax-payer of the town, and, with the other tax-payers of said town, is interested in having the funds of the town applied exclusively for legitimate purposes; and that the town council of D. have authorized B., acting mayor to employ counsel at the expense of the corporation to defend said suit. Held, that the allegations of the bill are sufficient to grant preliminary injunction upon.

2. An application for rehearing upon an order to vacate an order dissolving an injunction, under rule 90, equity practice circuit courts, must be by petition; but when such application is upon motion, and there is no objection to the mode of the application in the lower court, and the objections is first made in the appellate court, the objection comes too late. A failure to object at the proper time was a waiver of the objection.

3. It is not error after a bill has been filed and temporary injunction granted, and an order granted vacating the order granting the injunction and without refiling the bill, to grant an injunction upon the bill as originally filed, the bill still being on file, and the case being still under the control of the court.

4. An application of the funds of a town, derived from taxation for purposes beyond the purview of municipal grant, is a wrongful appropriation of the funds held in trust for the tax-payers and people to pay the legitimate expenses of the town, and is null and void, and resident tax-payers have the right to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the corporation, or the illegal creation of a debt which they, in common with other property holders, may otherwise be compelled to pay.

COUNSEL

Doggett & Buckman, for appellants.

Hamlin & Stewart, for appellee.

OPINION

MITCHELL J.

On the 3d day of January, 1889, the appellee filed his bill in the circuit court of Volusia county against the appellants, and among other things, the bill alleges, (substantially:)

That an election was held in and for the town of Daytona, July 24, 1889, at which a mayor, councilman, and treasurer were to be elected, and that the complainant and one Courtland Buckman were candidates for the office of mayor of said town, and that the election so held was illegal.

That the complainant has caused a suit to be instituted in the name of the state of Florida, upon complainant's relation, against the said Buckman, to test the legality of said election, and that the complainant is a tax-payer in said town, and with the other tax-payers thereof is interested in having the funds of the town applied exclusively for legitimate purposes.

That the town council of the said town have authorized the said Buckman, acting mayor, to employ counsel at the expense of the corporation to defend said suit, and threatened suits against the councilmen and treasurer of said town.

The prayer of the bill is for an injunction restraining said town authorities from expending the funds of the town in defending such suits.

Upon filing the bill and affidavits, a preliminary injunction was granted as prayed.

Afterwards, on September 16, 1889, upon motion of respondents and affidavits filed by them, the injunction was dissolved. On the 17th day of the same month, upon motion of the complainant, and after hearing argument, the court granted an order vacating the order of September 16th dissolving the injunction, and reinstating the injunction. On the same day (September 17th) solicitors for respondents filed their objections and exceptions to the granting of the order vacating the order dissolving the injunction, and granting the injunction.

The objections and exceptions to the rulings of the court were:

That the bill sets up no title to such relief in the complainant.

That it is not properly sworn to.

That this court has no jurisdiction of such matters.

That there is no reason for the interference of a court of equity herein, or the granting of such a writ.

That the bond is too small.

This motion was overruled, and respondents appealed, and have filed the following assignment of errors:

(1) That the judge erred in permitting the filing of the bill in said cause.

(2) That the judge erred in entertaining said cause, and in granting the restraining order of September 2, 1889.

(3) That the judge erred in granting the order of September 17, 1889, vacating the order previously and solemnly made by him on the 16th day of September, 1889, dissolving the restraining order granted by him on September 2, 1889.

(4) That the judge erred in refusing to grant the motion of September 17, 1889.

(5) That the judge erred in receiving, filing, and approving the paper called an 'injunction bond,' on September 17, 1889.

(6) That said judge erred in granting the restraining order of September 17, 1889.

(7) That said judge erred in refusing the motion to dissolve the restraining order granted on September 17, 1889.

As to the first assignment of error. We are unable to comprehend the reasoning of counsel for appellants in their contention that the court erred in allowing the bill filed, because, under the statute, the bill had to be filed before the granting of the injunction, and the judge could have known nothing of the bill before it was filed, and could therefore have committed no error, as he had no control over the bill until it was filed.

Second. We see no error in granting the preliminary injunction. There is enough in the record, we think, to show that before the restraining order was granted the bill had been filed, and that the allegations of the bill were sufficient to grant the order upon. It is urged that the bill was not properly sworn to, the...