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board, be and the same hereby is dissolved and rescinded and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."
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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