Tallevast v. Kaminski

• Court: South Carolina Supreme Court
• Writing for the Court: CARTER, J.
• Citation: Tallevast v. Kaminski, 146 S.C. 225, 143 S.E. 796 (S.C. 1928)
• Decision Date: 13 June 1928
• Docket Number: 12468.
• Parties: TALLEVAST v. KAMINSKI et al.

143 S.E. 796

146 S.C. 225

TALLEVAST v. KAMINSKI et al.

No. 12468.

Supreme Court of South Carolina

June 13, 1928

Appeal from Common Pleas Circuit Court of Georgetown County; S.W. G Shipp, Judge.

Action by H. C. Tallevast, on behalf of himself and other taxpayers of the County of Georgetown, against Harold Kaminski individually and as Chairman of the Board of County Commissioners of Georgetown County, and others. From order denying interlocutory injunction, plaintiff appeals. Affirmed.

The following are successive orders, denying successive applications for interlocutory relief, and plaintiff's exceptions:

Order.

"This matter comes before me on a motion of the defendants to dissolve the restraining order granted by me on the application of the plaintiff under date of June 18th. The scope of such restraining order was to enjoin the defendants pending the further order of this court, from using or expending certain funds borrowed by the county, and now in its treasury, as alleged in the complaint. The motion is supported by various affidavits and exhibits. The matter thus before me for consideration does not involve a decision on

the merits of the issues raised by the parties. I am dealing solely with the problem whether from the standpoint of equity jurisdiction, the complaint and supporting papers present such a case as requires interlocutory relief to prevent irreparable injury or damage or the continuance of ultra vires acts on the part of the defendant county commissioners.

"Many of the material allegations of the complaint, including the basic charge that the acts of the defendants are not within scope or contemplation of the statutory provisions upon which the complaint is founded, are made on information and belief, and there are no allegations showing the source of such information or the grounds of such belief. This in itself is a fundamental objection to the granting of interlocutory relief by way of a temporary injunction, and to the continuance of the restraining order. Pickman v. Georgetown County, 130 S.C. 18, 125 S.E. 191.

"Nor does it appear from the complaint that if on the final hearing the acts of the defendants should be so shown to be illegal, as charged, the plaintiff will suffer irreparable injury or damage.

"On the showing made I do not think that an important public project, such as the one disclosed in the moving papers, and in the complaint itself, should be disturbed, with possible serious loss to the county, and interference with the public convenience, pending the hearing of the case on its merits.

"Counsel for both parties having been heard, and the matter having been carefully considered by me, it is ordered, adjudged, and decreed that the restraining order heretofore granted by me in this cause against the defendants, individually, and as members of the board of county commissioners of Georgetown county, and against Harold Kaminski, as chairman of the board, be and the same hereby is dissolved and rescinded and is without further operation."

No written notice of the filing of this order has ever been served on plaintiff or his attorneys .

Order.

"This action was commenced by the service of a summons and verified complaint, dated the 17th day of June, 1927. Upon such complaint and the exhibits attached thereto, I granted a temporary restraining order, and required the defendants to show cause before me on the 1st day of July, 1927, why they should not be permanently enjoined as prayed in the complaint. In due time, before July 1, 1927, the defendants noticed a motion before me to dissolve the temporary restraining order above referred to. The matter came up for hearing, and after consideration of the complaint, exhibits and various affidavits and counter affidavits of the parties, I concluded that the plaintiff had not made out such a case as entitled him to the relief prayed, and I accordingly dissolved the restraining order.

"Under date of July 7, 1927, and within 20 days after the service of the original summons and complaint, the plaintiff served upon the defendants an amended summons and complaint, with certain exhibits and affidavits attached, and upon such amended complaint I granted a temporary restraining order, and required the defendants to show cause before me on the 15th day of July, 1927, why they should not be perpetually enjoined as prayed. The matter now comes before me on the returns of the defendants to such restraining order, together with reply affidavits and exhibits submitted by the plaintiff.

"The primary problem presented is whether, upon the proceedings above referred to, the order granted at the first hearing did not preclude the plaintiff from obtaining an additional restraining order, or further applying for injunctive relief.

"While the strict doctrine of res adjudicata is not involved, it is fundamental that litigants will not be permitted by successive applications to the court to raise questions which have already been decided against them. Sound principles of public policy affecting the orderly conduct of the business of the courts, as well as the prevention of the use of legal remedies to unduly harass parties proceeded against, require that a moving party submit to the court in the first instance all of the facts and circumstances upon which he relies, and not hold back some of such facts for the purpose of renewing his application in the event that his first attempt should prove unsuccessful. The underlying rule appears to be that where interlocutory relief has been dissolved or refused, a second application for such relief must be founded upon facts other than those set forth in the original application, and that such new facts must not have been known to or reasonably ascertainable by the moving party at the time of the first application. In 1 High on Injunctions, 30, 31, the rule is thus expressed: 'It is within the discretion of a court of equity to revive an injunction, after it has been dissolved, and upon a proper showing of complainant's right to relief the injunction will be reinstated, the court being regarded as always open for this purpose. And where sufficient facts are stated in a supplemental bill to warrant an injunction it will be granted, although the injunction granted on the original bill has been dissolved. And when an interlocutory injunction is allowed, but the bill is afterwards dismissed for want of prosecution, the final order of dismissal does not operate as res adjudicata upon the question involved. But when a second bill is filed to obtain a second injunction, in relation to the same subject-matter and between the same parties, it is not enough to allege new grounds of equity not suggested in the former bill; it must be shown that the new equity alleged did not exist at the time the original bill was filed, or, if it existed, that it was unknown to the complainant. Nor will an injunction once dissolved be reinstated simply upon new evidence, no new ground of equity being stated which was not alleged in the original bill.'

"' Ordinarily, a second application for injunction should only be granted in the exercise of a sound discretion, and would be denied unless the petition set up facts which were unknown at the time of the first application; but this rule applies only where the second application is to operate on the same act sought to be enjoined in the first application.' 14 R. C. L. 327.

"'As a general rule the second application will be denied merely on a showing that the first one was denied, unless complainant presents new and additional matter discovered since the former hearing. The renewal of a motion for an interlocutory injunction on grounds or on evidence which should have been presented on the first application will be discouraged; and an application once refused will not at a later stage be granted except in a clear case.' 32 C.J. 366.

"These principles are recognized and applied by our Supreme Court. Jordan v. Wilson, 69 S.C. 53, 48 S.E. 37; Montgomery v. Robinson, 93 S.C. 247, 252, 76 S.E. 188.

"Under the rules expressed in these authorities, it is apparent that unless in the present case an examination of the amended pleadings discloses new facts in support of the relief claimed-new facts which were not known to or ascertainable by the plaintiff at the time of the institution of the original action-the restraining order granted on the amended bill should be dissolved, and injunctive relief refused. As set forth in the case of Jordan v. Wilson, supra, the remedy of a disappointed litigant in a case where interlocutory relief is granted or refused is by way of appeal. In that case, after referring to the various statutory provisions relating to the granting and dissolution of interlocutory injunctive orders, the court said:

"'These provisions manifestly contemplate that a defendant may have an opportunity to be heard on the question of a temporary injunction; if he is not heard in the first instance, he may on motion to dissolve be heard. Any subsequent application for a reconsideration of the question is in the nature of a review, which [under] section 335 declares [now section 636 of the Code of Procedure, 1922], can only be had as prescribed in the chapter regulating appeals.'

"Reviewing the pleadings and supporting papers in the light of the above principles, I am satisfied that the proceedings on the amended bill constitute an attempt on the part of the plaintiff to obtain a review by me of my own order, granted in the original proceeding. There are no such new facts alleged as can bring the case within the exceptions to the rule prohibiting a second application to the court for relief which has been once refused.

"The original complaint consisted of twelve

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