51 Fla. 441
Fla.
1906
Shackleford, C. J.

(after stating the facts.) It is the settled law in this court that it is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or state such facts therein as show that he is not entitled to relief in a court of equity, hе must suffer the consequences of his so doing. Durham v. Edwards, 50 Fla. 495, 38 South. Rep. 926, and authorities cited therein. This principle applies to all bills in equity, but is especially applicable to bills seeking an injunction, the rule being that the title or interest of the complainant and the facts upon which he prediсates his prayer for such relief must be stated positively, with clearness and certainty. 'In other words, the bill must state facts and not opinions or legal conclusions. There must be something more than the opinion of the complainant, however solemnly affirmed, to authorize the interposition of the court by injunction. Thebaut v. Canova, 11 Fla. 143, text 167; P. & G. & A. & G. C. R. R. Co., v. Spratt, 12 Fla. 26, text 100, S. C. 91 Am. Dec. 747 ; Garnett v. J. St. A. & H. R. R. R. Co., 20 Fla. 889, text 901; Shivery & Streeper, 24 Fla. 103, 3 South. Rep. 865; State v. Black River P. Co., 27 Fla. 276, text 326, 9 South. Rep. 205; Louisville & Nashville R. R. Co. v. Gibson, 43 Fla. 315, 31 South. Rep. 230. This is required for two *451reasons, first because courts are reluctant to interfere with the free use and enjoyment of property by an owner or occupant, and will only interfere where it is clearly made to appear that the use and enjoyment are injurious to the rights of others. Thebaut v. Canova, 11 Fla. 143, text 170; Randall v. Jacksonville St. R. R. Co., 19 Fla. 409, text 426; Shivery v. Streeper, 24 Fla. 103, 3 South. Rep. 865. Second, because on an application for an injunction, the court may go into the merits as disclosed by the bill and which are intrinsic and dependent upon its express allegations and charges, but cannot grant relief except upon the matters charged in the bill. City of Apalachicola v. The Apalachicola Land Co., 9 Fla. 340, S. C. 79 Am. Dec. 284; P. & G. & A. & G. C. R. R. Co. v. Spratt, 12 Fla. 26 text 114, S. C. 91 A. M. Dec. 747; McKinney v. County Commissioners of Bradford Co., 26 Fla. 267, 4 South. Rep. 855. It is also true, when an application is made to the-court for a temporary injunction or restraining order, without notice to the defendants, that the allegations in the bill should be even more carefully scanned and considered than when the defendants have been served with notice and have the opportunity of resisting the application. In other words, before granting a temporary injunction or restraining order, without notice, the court should be satisfied that a clear case is made by the bill therefor, and also that it has been clearly made to appear that it is “a case of urgent necessity, or one in which irreparable mischief will be produced if the aid of the court is denied.” Thebaut v. Canova, 11 Fla. 143, text 168; Swepson v. Call, 13 Fla. 337, text 359; Lewton v. Hower, 18 Fla. 872. Also see Allen v. Hawley, 6 Fla. 142, S. C. 63 Am. Dec. 198. It is true that Equity Rule 46 confers upon the judge to Avhom the application is presented the discretion and poAver to “grant instanter *452an order restraining the party complained of until the hearing or the further order of the court or judge,” hut this shоuld not be done “unless it is manifest to such judge, from the sworn allegations in the bill or the affidavit of the complainant or other competent person, that the injury apprehended will be done if an immediate ‍​‌‌​​​​​​‌​‌​‌​​‌​​‌​​​‌‌​‌‌‌‌‌‌​​‌‌‌​​​‌‌​​‌​​​‍relief is not afforded.” An affidavit to or an allegation in the bill asserting simply the legal conclusion that, “notice to the defendant of the application for injunction will accelerate the injury apprehended,” is not a sufficient excuse, and furnishes no reason, for dispensing with notice. Richardson v. Kittlewell, 45 Fla. 551, 33 South. Rep. 984. To justify the granting of an injunction ex parte and withоut notice the allegations of the sworn bill or accompanying affidavit must state facts showing how and why the giving of notice will accelerate or precipitate the injury complained of from which the court can determine for itself whether the giving of notice will, or is likely to, so result, and such facts must make it manifest to the court that the giving of notice of the application will, or is likely to, have such result. In addition, we might state that, if notice were given to the defendant of the time and place of the application, he would have an oppоrtunity of interposing his defense thereto by appropriate pleadings, both complainant and defendant would have the right to introduce evidence and the court would then be in a position to consider the merits of the case as presented by the entire record. P. & G. & A. & G. C. R. R. Co. v. Spratt, 12 Fla. 26 text 114, S. C. 91 Am. Dec. 747; Section 1466 of Revised Statutes of 1892; Sullivan v. Moreno, 19 Fla. 200; Fuller v. Cason, 26 Fla. 476, 7 South. Rep. 870; Campbell v. White, 39 Fla. 745, 23 South. Rep. 555.

*453It is also the settled law here that not only must the allegations in the bill for an injunction be clear, direct and positive, but that they must be verified by an affidavit, which also must be direct and positive. And, where any of the material allegations in the bill are stated upon information, there should be annexed to the bill the additional affidavit of the person from whom the information is derived, verifying the truth of the information thus given. Bowes v. Hoeg, 15 Fla. 403; Ballard v. Eckman, 20 Fla. 661; Ruge v. Apalachicola Oyster, C. & F. Co., 25 Fla. 656, 6 South. Rep. 489; Doke v. Peek, 45 Fla. 244, 34 South. Rep. 896.

It is further true, that a court of equity cannot grant relief when the complainant’s own showing in his bill demonstrates a wаnt of equity in his prayer, and that where there is no equity in the bill the application for an injunction should be refused. Wordehoff v. Evers, 18 Fla. 339; Sauls v. Freeman, 24 Fla. 209, 4 South. Rep. 525, S. C. 12 Am. St. Rep. 190; McKinney v. County Commissioners of Bradford Co., 26 Fla. 267, 4 South. Rep. 855; Town of Orange City v. Thayer, 45 Fla. 502, 34 South. Rep. 573.

The insolvency of the debtor is never a sufficient reason of itself for the exercise of the extraordinary power of the court by way of injunction. There must be some other equitable ground combined with insolvency. P. & G. & A. & G. C. R. R. C. v. Spratt, 12 Fla. 26. This principle has been directly applied to bills seeking to enjoin trespasses on timbered lands under section 1469 of the Revised Statutes of 1892. See Carney v. Hadley, 32 Fla. 344, 14 South. Rep. 4, S. C. 37 Am. St. Rep. 101, 22 L. R. A. 233; Doke v. Peek, 45 Fla. 244, 34 South. Rep. 896. In addition to the above cited cases, see Reddick v. Meffert, 32 Fla. 409, 13 South. Rep. 894; Woodford v. Alexander, 35 *454Fla. 333, 17 South. Rep. 658; Wiggins v. Williams, 36 Fla. 637, 18 South. Rep. 659, S. C. 30 L. R. A. 754; Brown v. Solary, 37 Fla. 102, 19 South. Rep. 161; McMillan v. Wiley, 45 Fla. 487, 33 South. Rep. 993, for the construction of section 1496 of the Revised Statutes ‍​‌‌​​​​​​‌​‌​‌​​‌​​‌​​​‌‌​‌‌‌‌‌‌​​‌‌‌​​​‌‌​​‌​​​‍of 1892, and the basis for equitable relief thereunder.

Even if the illegality of the acts alleged in the bill in the instant case, which were sought to be enjoined, were clearly apparent, in the absence of allegatiоns showing-some distinct ground of equity jurisdiction, an injunction should not have been granted. Strickland v. Knight, 47 Fla. 327, text 330, 36 South. Rep. 363, test 364.

It should also be borne in mind that where there are contradictory or inconsistent allegations in a bill, its equity will be tested by the weaker, rather than by the stronger, allegations. Durham v. Edwards, 50 Fla. 495 38 South. Rep. 926; Barco v. Doyle, 50 Fla. 488, 39 South. Rep. 103.

Of course, if the injury apprehended has already been consummated, an injunction should not be granted, as the object of an injunction is to preserve and keep things in the same state or condition, and to restrain an act which if done would be contrary to equity and good ocnscience, but. it cannot be applied correctively. P. & G. and A. & G. C. R. R. Co. v. Spratt, 12 Fla. 26, S. C. 91 Am. Dec. 747; Smith v. Davis, 22 Fla. 406; McKinney v. County Commissioners of Bradford County, 26 Fla. 267, 4 South. Rep. 855; Tampa Gas Co. v. City of Tampa, 44 Fla. 813, 33 South. Rep. 465.

Testing the bill in the instant case by the principles enunciated, what do Ave find? It seeks the cancellation of the contract made by the Phifers to J. J. Godwin, deceased, for the sale of certain timber, which contract Ave *455have fully set forth, on the ground that the same had been forfeited by reason of the failure of Godwin to make the payment on the first day of July, 1905, as specified therein, although it alleges that the contract contains no forfeiture clause, and it is not alleged that the time for such payment is of the еssence of the contract; for a temporary injunction against Maultsby and Mathews, on the ground that Godwin’s administratrix had effected a sale of the properties of the estate and had attempted to sell the timber- contract at public outcry to Maultsby and Mathews, who сlaimed the timber by virtue of such sale and that they had paid the administratrix full price therefor and refused to pay the appellees anything therefor, and who had notified appellees that they intended going upon the lands and beginning the cutting of the timber on the 25th day of September, 1905, restraining them from so doing, which might be made perpetual; that an account might be taken of what was due appellees from the administratrix for balance on timber, of what might be due appellees from Maultsby and Mathews for timber cut by them prior to the granting of the injunction, that the аdministratrix and Maultsby and Mathews might be decreed to pay to appellees the respective amounts so found to be due, and further containing the prayer for general relief. The bill also contains an allegation that “the estate of J. J. Godwin, deceased, orators аre informed, believe, allege and charge, is insolvent,” and a further allegation “that an injunction is necessary to prevent said trespass and the giving of notice would greatly accelerate the injury and defeat the purpose of the writ.” The only affidavit appended tо the bill is that of H. L. Phifer, one of the appellees.

It will be observed that the bill does not allege that Maultsby and Mathews purchased the timber contract *456from the Godwin estate cum onere as to the balance of the unpaid purchase price therefor, nor does it seek to recover this balancе from the purchasers, but from the administratrix of the Godwin estate, to whom it alleges the purchasers claim to have paid it. Neither does the bill seek to restrain the sale of the timber contract by the Godwin estate to Maultsby and Mathews, but shows that it had already been consumated, аlleging, however, that the administratrix had “no rights in the said property at the time of making said sale, the same having been forfeited by virtue of the failure to pay for the timber in accordance with said contract.” As we have already seen, the bill alleges that the “contract doеs not contain any forfeiture clause,” and an inspection of the contract shows the correctness of this allegation.

The ground upon which the cancellation of the contract is sought is the failure of Godwin or Ms estate to pay the balance of the purchase ‍​‌‌​​​​​​‌​‌​‌​​‌​​‌​​​‌‌​‌‌‌‌‌‌​​‌‌‌​​​‌‌​​‌​​​‍price, as stipulated therein. This of itself does not furnish sufficient ground for cancellation. See Harrington v. Rutherford, 38 Fla. 321, 21 South. Rep. 283. Equity abhors forfeitures and penalties. 16 Cyc. 75. It is contended by the appellees that the contract is but a mere license, but this contention cannot be sustained and we do not deem it necessary even to discuss it, as a bare inspection of the contract shows the contrary.

We have also seen that insolvency alone furnishes no ground for the interposition of a court of equity, but it must be coupled with some other equitable ground cоnnected therewith. It will also be observed that the insolvency of the Godwin estate is not alleged positively and directly in the bill, but only upon information and belief, and the sources of the information with accompanying affidavits are not furnished. It is not even inti*457mated in the bill that Maultsby and Mathews, thе purchasers, against whom the injunction was sought, were insolvent. We also fail to -find any sufficient showing made in the bill or affidavit that the threatened injury was imminent or that the giving of notice would accelerate the same, so as to make it manifest to the judge that a necessity existed for disрensing with notice of the time and place when the motion or application for the injunction would be made, as is provided by Equity Rule 46. In other words, we are of the opinion that the bill is entirely wanting in equity and that the temporary injunction should not have been granted, most assuredly not in the absence of notice. See Swepson v. Call, 13 Fla. 337.

. It should be borne in mind that the writ of injunction is an extraordinary, not an ordinary, every-day writ, and it should never be granted lightly, but cautiously and sparingly, and notice should always be required to. be given, in accordance with Equity Rule 46, unless the provisions therein for dispensing with notice have been strictly followed. Like the writ of habeas corpus, the writ of injunction is a highly beneficial writ, but great care should be exercised in awarding it, lest it be turned into an instrument of oppression and injury. See State v. Vesquez, 49 Fla. 126, 38 South. Rep. 830.

It necessarily follows from what has been said that the court also erred in refusing to dissolve the injunction upon the coming in of the answers and the motion made thereon. As was said in Wordehoff v. Evers, 18 Fla. 339, text 340, “There can be no.question that if the bill contained no grounds for equitable relief, the injunction should have been refused in the first instance. This being the ‍​‌‌​​​​​​‌​‌​‌​​‌​​‌​​​‌‌​‌‌‌‌‌‌​​‌‌‌​​​‌‌​​‌​​​‍case, the court should seek the earliеst opportunity to right itself. As a question of mere practice, it is provided by statute that in all cases, the court may on motion and *458due notice, either before or after answer filed, dissolve any injunction that may have been granted.” See Section 1467 of Revised Statutes of 1892. But, as wе have seen, the motion in the instant case was based upon the sworn answers of the appellants, one of which had a demurrer incorporated therein. It is true that, at the hearing of the motion, affidavits from two of the appellees were produced, but we fail to see wherein their right to an injunction was strengthened thereby.

We recognize the principle so frequently enunciated by this court that, even where all the equities of the bill are denied by the answer, it is not a matter of course to dissolve the injunction, both the granting and continuing of injunctions resting largely in the sound judicial discretion of the court, to be governed by the circumstances of the case. Allen v. Hawley, 6 Fla. 142, S. C. 63 Am. Dec. 198; Carter v. Bennett, 6 Fla. 214; Linton v. Denham, 6 Fla. 533; City of Apalachicola v. The Apalachicola Land Co., 9 Fla 340, S C 79 Am. Dec. 340; Thebaut v. Canova, 11 Fla. 143; P. & G. and A. & G. C. R. R. Co. v. Spratt, 21 Fla. 26, S. C. 91 Am. Dec. 747; Scarlett v. Hicks, 13 Fla. 314; Sullivan v. Moreno, 19 Fla. 200; Randall v. Jacksonville Street R. R. Co., 19 Fla. 409; Hayden v. Thrasher, 20 Fla. 715; Garnett v. J. St. A. & H. R. R. Co., 20 Fla. 889; McKinnie v. Dickenson, 24 Fla. 366, 5 South. Rep. 34; Fuller v. Cason, 26 Fla. 476, 7 South. Rep. 870; Indian R. Steamboat Co. v. East Coast Trans. Co., 28 Fla. 387, 10 South. Rep. 480, S. C. 29 Am. St. Rep. 258; Campbell v. White, 39 Fla. 745, 23 South. Rep. 555; Baya v. Town of Lake City, 44 Fla. 491, 33 South. Rep. 400; Richardson v. Kittlewell, 45 Fla. 551, 33 South. Rep. 984; Baird v. Ellsworth Trust Co., 45 Fla. 187, 34 South. Rep. *459565; Bluthenthal v. Mohlman, 49 Fla. 275, 38 South. Rep. 709; Suwannee & S. P. R. Co. v. West Coast Ry. Co., 50 Fla. 609, 39 South. Rep. 538.

While this is true, if it is plainly apparent that the bill is without equity, an injunction should not be granted in the first instance but if grаnted should be dissolved at the earliest opportunity by the court and the bill ordered dismissed. Sauls v. Freeman, 24 Fla. 209, 4 South. Rep. 525, S. C. 12 Am. St. Rep. 190. The fact that the bill states no cause for equitable relief distinguishes the instant case from Baya v. Town of Lake City, supra, Richardson v. Kittlewell, supra, and Baird v. Ellsworth Trust Co., supra.

We are forced to the conclusion that there was an abuse of judicial discretion both in issuing and retaining the injunction in force.

The case was set down for a hearing upon the bill and answers by the appellees, no replication having been filed and no testimony taken, yet a decree was rendered in favor of the appellees. This was manifestly erroneous. When the case is heard on bill and answers all the averments of the answer are to be taken as true. Garrison v. Parsons, 45 Fla. 335, 33 South. Rep. 525; City of Orlando v. Giles, decided here at the present term. Moreover, the answer contained the usual genera denial found in answers in chancery, and contained no admission ‍​‌‌​​​​​​‌​‌​‌​​‌​​‌​​​‌‌​‌‌‌‌‌‌​​‌‌‌​​​‌‌​​‌​​​‍of the insolvency of the Godwin estate, therefore it was incumbent upon the appellees to prove that fact as well as the matters denied in the answers. Doke v. Peek, 45 Fla. 244, 34 South. Rep. 896; Parken v. Safford, 48 Fla. 290, 37 South. Rep. 567.

*460It follows that all the errors are well assigned and that the final decree appealed from must be reversed, with directions to dismiss the bill, and it is so ordered.

Cockrell and Whitfield, JJ., concur. Taylor, Hocker and Parkhill, JJ., concur in the opinion.