Sims v. Greene
| Decision Date | 21 April 1947 |
| Docket Number | No. 9371.,9371. |
| Citation | 161 F.2d 87 |
| Parties | SIMS v. GREENE. |
| Court | U.S. Court of Appeals — Third Circuit |
C. Russell Phillips, of Philadelphia, Pa. (Sidney L. Wickenhaner, Albert J. Schneider, Montgomery, McCracken, Walker & Rhoads and Raymond Pace Alexander, all of Philadelphia, Pa., on the brief), for appellant.
Walter A. Gay, of Philadelphia, Pa. (Gerald A. Gleeson, of Philadelphia, Pa., on the brief), for appellee.
Before BIGGS, GOODRICH, and KALODNER, Circuit Judges.
Many of the facts pertinent to the present appeal are stated in our opinion in Sims v. Greene, 3 Cir., 160 F.2d 512, and need not be repeated here. It is sufficient to state that following our reversal of the temporary restraining order or injunction originally issued by the court below on December 2, 1946, and after the remand of the case the learned trial judge on March 12, 1947, entered a preliminary injunction in form and effect substantially identical with the temporary restraining order or injunction disposed of by this court on the prior appeal. At or about the same time the court below filed findings of fact and conclusions of law. See Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Greene appealed from the order of March 12. We granted supersedeas and set the appeal down for argument on April 7, specifically directing the District Court to proceed to hear the case pending the disposition of the appeal.
We conclude that the preliminary injunction must be set aside. There are several reasons for our conclusion. The preliminary injunction was issued on the identical record which was before this court on the prior appeal. The allegations of the pleadings and affidavits filed in the cause are conflicting. Such conflicts must be resolved by oral testimony since only by hearing the witnesses and observing their demeanor on the stand can the trier of fact determine the veracity of the allegations made by the respective parties. If witnesses are not heard the trial court will be left in the position of preferring one piece of paper to another. Greene was given no opportunity to present oral testimony on his behalf except for one witness1 whose testimony was immaterial to any issue presented by the pleading. Sims insists that Greene was permitted to offer in evidence certain documents material to the issue but an examination of the record indicates that these documents, at least the most important of them,2 were read into the record by Greene's counsel in his protracted cross-examination of Sims. Questions asked by counsel are not evidence. The truth of the matter is that Greene was given no fair opportunity to present testimony prior to the issuance of the preliminary injunction.
The issuance of a preliminary injunction under such circumstances is contrary not only to the Rules of Civil Procedure but also to the spirit which imbues our judicial tribunals prohibiting decision without hearing. Rule 65(a) provides that no preliminary injunction shall be issued without notice to the adverse party. Notice implies an opportunity to be heard. Hearing3 requires trial of an issue or issues of fact. Trial of an issue of fact necessitates opportunity to present evidence and not by only one side to the controversy. It should be pointed out also that subsection (b) of Rule 65 provides that a motion for a preliminary injunction "shall be set down for hearing4 * * *" and speaks of the motion coming on for "hearing".
It is also pertinent to observe that the predecessor to Rule 65 was Equity Rule 73, 28 U.S.C.A. § 723 Appendix, and that this rule was copied in haec verba from Section 17 of the Clayton Act, 28 U.S.C.A. § 381. It has never been supposed that a temporary injunction could issue under the Clayton Act without giving the party against whom the injunction was sought an opportunity to present evidence on his behalf. The theory of Rule 65, of Equity Rule 73, and of Section 17 of the Clayton Act, is that the trial judge may issue a temporary restraining order if he thinks it necessary to preserve the status quo; that the order may endure for twenty days but for no longer without the consent of the party against whom it issued; that within the twenty day period, which affords the opportunity for hearing, such facts must be presented to the court as will justify the tribunal, in the exercise of its sound legal discretion, to issue a preliminary injunction.
If anything more was required to...
To continue reading
Request your trial
-
Christian v. NEW YORK STATE DEPT. OF LABOR, DIV. OF EMP.
...and no pretense of considering two sides. Coleman v. Brucker, 103 U.S. App.D.C. 283, 257 F.2d 661, 662-663 (1958); Sims v. Greene, 161 F.2d 87, 89 (3d Cir. 1947). And if the word "findings" means anything more than such untested declarations, it was an apt term for permanent civil servants,......
-
Carter-Wallace, Inc. v. Davis-Edwards Pharmacal Corp.
...are disputed issues of fact. F.R.Civ.P. 65(b), and 52(a). While this court has not gone so far on this score as Sims v. Greene, 161 F.2d 87, 88-89 (3 Cir. 1947) (Biggs, J.), see contra, Ross-Whitney Corp v. Smith, Kline & French Laboratories, 207 F.2d 190, 198 (9 Cir. 1953), we have stated ......
-
Oburn v. Shapp
...v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); Yakus v. United States, 321 U.S. at 439-40, 64 S.Ct. 660; Sims v. Greene, 161 F.2d 87, 89 (3d Cir. 1947). "A finding of no irreparable harm is itself sufficient to uphold the district court's denial of a preliminary injunction as ......
-
GTE Sylvania Inc. v. Consumer Product Safety Com'n
...434 (1973). Thus, the Court finds that disclosure as proposed by the Commission would irreparably harm the plaintiffs. See Sims v. Greene, 161 F.2d 87 (C.A. 3, 1947). C. Impact On Other Interested Persons And The Public The Court must also consider the consequences of its decision on both i......