Gillespie v. Chapline

59 Fla. 500 | Fla. | 1910

Shackleford, J.

(after stating the facts.)

This is another case in which the appellee has not favored us with a brief. See Mizell Live Stock Co. v. J. J. McCaskill Co., 59 Fla. 322, 51 South. Rep. 547, and authorities there cited.

We have several times, within the last few years, had occasion to discuss the practice of granting restraining orders without notice and have laid down the principles which should regulate the same, so shall content ourselves with referring to some of such cases. See especially Godwin v. Phifer, 51 Fla. 441, 41 South. Rep. 597, where the subject is fully discussed and authorities collated. Also see Hall v. Horne, 52 Fla. 510, 42 South. Rep. 383; Savage v. Parker, 53 Fla. 1002, 43 South. Rep. 507; Builders Supply Co. v. Acton, 56 Fla. 756, 47 South. Rep 822. We have also held that the practice of granting a restraining order and allowing time in which to file an indemnity bond is unauthorized. Hall v. Horne, supra, and Savage v. Parker, supra. Tested by the principles enunciated in the cited cases, it is very doubtful, to say the least of it, if the allegations in the bill and appended affidavits warranted the granting of the restraining order in the first instance, especially without notice to the defendants. We call attention to the fact that the bill was brought by the complainant as clerk and treasurer of the municipality, not as a citizen and tax payer.

The allegations as to the dishonest or fraudulent acts which are sought to be charged against the defendants are couched in vague, indefinite and general language. See McClinton v. Chapin, 54 Fla. 510, 45 South. Rep. 35, S. C. 14 Ann. Cas. 365.

It is also alleged in the bill that the complainant had removed the books of account from the town of Sarasota to another municipality, though by what legal right or authority, we are not advised. We are also at a loss to understand under what principle of equity jurisprudence the defendants could be restrained or enjoined from removing or suspending the defendant from his official position.

Even if we should pass by all these matters, when it was plainly made to appear that the restraining order as made should not have been granted in the first instance for any of the reasons discussed in the cited cases, or which we have mentioned, it should have been dissolved by the court at the earliest opportunity. See tlje authorities already cited.

While1 it is not a matter of course to dissolve a restraining order where all the equities of the bill are denied by the answer, as a general rule, this should be done. See Godwin v. Phifer, supra, and Robbins v. White, 52 Fla. 613, 42 South. Rep. 841.

We are clear that in the instant case, after a careful examination of all the pleadings that the court erred in refusing to grant the motion to dissolve the1 restraining order, therefore it necessarily follows that such interlocutory order must be reversed, and it is so ordered.

Whitfield, C. J., and Cockrell, J., concur. Taylor, P. J., and Hocker and Parki-iill, J. J., concur in the opinion.