26 Fla. 476 | Fla. | 1890
In this case, which is a suit of appellee against appellants, an injunction was granted upon bill, answer and affidavit of complainant. The defendants appealed, and assign in this Court that the Court below erred in granting the injunction, because, 1st, the answers of defendants fully deny all the circumstances upon which the equity in the bill was founded; 2d, no injunction bond was required of complainant.
The material allegations of the bill are, in substance, that one of the defendants, Mary A. Fuller, was indebted to complainant, Cason, for professional services, as attorney, in procuring the -establishment of a nuncupative will of Sarah C. Humphreys, by the terms of which said M. A. Fuller became the sole legatee of certain property, including six or eight hundred head of cattle, and in other litigation concerning the estate of said Humphreys, which led finally to the removal of the administrator of said estate, and the appointment of another; that said M. A. Fuller failing or refusing to pay, complainant, on the 16th of December, 1887, obtained a judgment against her in the Circuit Court of Franklin county, for $365 ; that the Clerk refused the demand of the complainant for the issue of execution on "the judgment ten days after the adjournment of the
The bill further alleges that afterwards, execution having been issued on complainant’s judgment, and become a lien upon said property, so pretended to have been purchased
And it then alleges that Patton and Neel, under some private arrangement between them and the other defendants, are killing and selling the cattle in market for beef, that they have already slaughtered one hundred head, and, as complainant is informed and believes, are selling about twenty a month, and he has reasonable ground to fear that if said defendants are not restrained from killing and disposing of said cattle, there will not be sufficient to pay his demand ; that said M. A. Fuller has no other property subject to execution sufficient to satisfy complainant’s judgment, and he claims that, as attorney, he has a lien on said cattle, independent of the lien of his execution and judgment.
The defendants, M. A. Fuller and F. Fuller, answering jointly, admit the sales as alleged in the bill, but deny that they were made without valuable and sufficient consideration, or for a pretended consideration, and say they were made in good faith, and not intended to defraud complainant by hindering and delaying the collection of his demand, and say that the debts of Humphreys were large and nearly consumed the whole estate. They deny that the cattle are being slaughtered and sold as alleged in the bill, and deny that there will not be sufficient to pay complainant’s demand out of said cattle, and say there is ample to pay his debt, if anv due him. The answer of Patton is to the same
Neel, in his answer, denies that at the time of Patton’s mortgage of cattle to him, and of the sale by F. Fuller to him, he had any knowledge or notice of any lien of complainant on said cattle, and says that on the execution of the mortgage he paid five hundred dollars to Patton, and gave him four promissory notes for two hundred and fifty dollars each, payable at thirty, sixty, ninety and one hundred and twenty days, and that he has paid these as -they have arrived at maturity, except the ninety day note, which he will be compelled to pay also. He denies any bad faith in the transaction.
The main equity of the bill rests on the charge of fraud in the sale of the cattle by M. A. Fuller to Patton. There is nothing in the claim of complainant that he has a lien on the cattle for his fees for services rendered in establishing the nuncupative will of Humphreys, under which M. A. Fuller became legatee. When that was done, the property of the estate vested in the administrator of Humphreys, and M. A. Fuller, though legatee, had no such direct right in it as would enable a lien to attach, nor did the judgment give complainant a lien, the law'of this State being that a judgment is a lien on realty, but not on personalty. • And as to any lien given by the execution, that could not attach till
Further than this, conceding that the facts alleged in the bill are sufficient to entitle the complainant to the relief he asks, if sustained by evidence on a final hearing, we are not satisfied they are sufficient to authorize a summary injunction, in the absence of allegations that show irreparable mischief as likely to result from delay. We suppose complainant had such allegations in mind when he stated that M. A. Fuller had no other property out of which his execution against her could be satisfied, and that the cattle were being killed and sold in such numbers that if this is not prohibited enough would not be left to bring the amount of his claim. But his bill shows that Fuller has nothing to do with the cattle now, and its charge is that defendants, Patton and Neel, are the parties disposing of them, and that they are treated as the cattle of Neel. Neel, therefore, is the real party against whom the injunction will operate, and who will be responsible for the cattle if complainant is successful in his suit. But it is not alleged in the bill that Neel is
This view, and that we have taken in regard to insufficiency of evidence to overcome the denials of the answers, are important in connection with the second ground of error, viz: the granting of the injunction without bond. There is’ no affidavit of inability to give bond as required by the statute (McClellan’s Digest, 158, Section 19), and it is not contended for complainant that a bond is not necessary, but on the authority of Scarlett vs. Hicks, et al., 13 Fla., supported by Gamble vs. Campbell, 6 Fla., 347, it is suggested that instead of reversing the case and remanding it for a dissolution of the injunction, it is in the power of this Court to remand the case with directions to dissolve the injunction unless the complainant give bond in compliance with the statute. If we admit the power, and the views heretofore expressed, leading to the conclusion that as the case stands a summary injunction should not have been granted, are correct,-it follows that the case is 5ne in which the power should not be exercised. And that is' just what occurred in Gamble vs. Campbell, though, in that case, the Court held that an injunction- should not be dssolved because 'of a deficient bond, it refused to put the power of correction in motion because of want of equity in the bill, the difference between that case and this being that while here the equity of the bill is conceded, the answers meet it in such way, and the defect of the bill as to allegation of irreparable mischief is such, that in our opinion a summary in-j unction should not' have been granted.
The decree is reversed, and the case will be remanded with direction that the injunction be dissolved.