Woodward v. State, 55 So. 506

Woodward v. State

55 So. 506 | Ala. | 1911

ANDERSON, J.

The bill in this case was filed and the injunction was sought to abate a nuisance as defined by the Fuller liquor bill. — Acts Sp. Sess. 1909, p. 63. Section 20 provides that the bill or petition must state the facts upon which the application is based, and shall be verified by the affidavit of the officer or citizen filing the suit, either upon knowledge or information and belief, as the circumstances may warrant, and in case the bill is filed by any one of the officers named, and he be unwilling to make the affidavit, the verification may be made by any citizen or citizens in the same manner. The bill in the present case was filed by Solicitor Blackwell, who sets forth “that he is informed, and has probable cause for believing, and does believe, that the succeeding facts exist,” etc. Blackwell does not make the affidavit, but one is made by one McCulloch, which does no more than affirm that affiant “is informed, and has cause to believe, and does believe that the statements contained in the foregoing bill are true.” The bill does not aver an unequivocal existence of the facts complained of, but that Blackwell is informed and believes that they do exist, and the affidavit by McCulloch is nothing more than an affirmance that McCulloch believes that Blackwell was informed and believes the existence of the facts as set out in the bill. This is an extraordinary remedy, authorizing the seizure and destruction of *11property, and the issuance of an injunction must rest upon a sufficient and valid affidavit, and cannot be sustained upon such an affidavit as tbe one in question, as it in no sense affirms tbe existence of tbe facts complained of upon tbe knowledge or information of tbe affiant, and is at best a mere affirmation tbat affiant believes tbat Blackwell believes tbat said facts exist. Citation of authority is needless to demonstrate tbe insufficiency of this affidavit, and, indeed, tbe learned trial judge concedes in bis opinion tbat tbe affidavit would be insufficient, but for tbe recent cases of Fitzpatrick v. State, 169 Ala. 1, 53 South. 1021, and State v. Abraham, 165 Ala. 201, 51 South. 788. Tbe affidavit in tbe Fitzpatrick Gase is unlike the one in question, and avers tbat affiant has probable cause for believing and does believe the succeeding facts therein set out. Tbe objection to tbe affidavit did not go to affiant’s belief or knowledge, but the insufficiency of tbe facts detailed to charge an offense, and to tbe constitutionality of tbe law; so this case in no way supports tbe sufficiency of tbe affidavit in tbe present case. The Abraham Case, supra, does not, as reported, disclose tbe affidavit, or tbat any point was made as to tbe sufficiency of same.

It seems to be settled by the decisions of this court, as well as the English cases, that if the injunction has been irregularly granted, or if tbe order for it is erroneous, tbe remedy is not by a motion to dissolve. Such a motion, founded, as it can be only, on a want of equity in tbe bill, or tbe full and complete denial of its equity by tbe answer, is a waiver of tbe irregularity, if any has occurred, in tbe grant of the writ. Tbe irregularity is a ground for a motion to discharge, not for an application to dissolve the injunction. The one is directed against the mode of granting or issuing tbe writ, and tbe other against tbe case made by the bill, or tbe sufficiency of *12the answer to overcome it. The irregularities are amendable, and may be cured whenever attention is called to them, and may exist when the bill abounds in equity and the answer admits it. — Jones v. Ewing, 56 Ala. 360; East & West R. R. v. East Tenn., Va. & Ga. R. R., 75 Ala. 275.

It appears, however, that since the rendition of these decisions the statute (section 4526 of the Code of 1907) authorizes motions to dissolve and discharge to be made and heard at the same time without prejudice. Consequently a motion to dissolve is not a waiver of the right

A defective verification of the bill is a mere irregularity and the court should not discharge the injunction until opportunity is given to supply a sufficient affidavit. — Calhoun v. Cozens, 3 Ala. 498; Jacoby v. Goetter, 74 Ala. 427; Forney v. Calhoun Co., 84 Ala. 215, 4 South. 153. It is true, these last cases dealt with a motion to dissolve, and failed to consider the distinction between it and a motion to discharge, as brought out in the cases of Jones v. Ewing, supra, and East & West R. R. v. E. T., V. & G. R. R., supra; but they do hold, and properly so, that a defective verification of the bill is no cause for dissolving or discharging an injunction, unless the complainant, upon being ruled thereto, fails to verify his bill by a sufficient affidavit. — Jacoby v. Goetter, supra. We therefore hold that the judge of the law and equity court erred in not holding the verification of the bill insufficient, with a conditional decree that the injunction be discharged, unless a sufficient affidavit be made within the time fixed by the decree.

Section 20 of the act requires the bill to be sworn to by the complaining officer therein named, but further provides that the verification may be made by any citizen in case the officer is unwilling to make same. Mc-Culloch, therefore, had no authority to make the affida*13vit, except in the event that Blackwell was unwilling to do so, and McCulloch’s authority should be disclosed in the affidavit. Rule 15 of Chancery practice (page 1532, vol. 2, of the Code of 1907) ; Kinney v. Reeves, 142 Ala. 604, 39 South. 29; Guyton v. Terrell, 132 Ala. 67, 31 South. 83. But, as this case must be finally disposed of upon the motion to dissolve, there is no need for a remandment, in order that the affidavit may be amended or the injunction be discharged in case of failure to make said amendment.

While Section 3121 of the Code of 1907 abandons the motion to dismiss a bill for want of equity and puts the respondent to a general demurrer, yet the right to move to dissolve an injunction for want of equity in the bill is still preserved by section 4526, and which was made in the present case. The present bill avers no facts whatever, and falls far short of the requirements as to equity pleading (Seals v. Robinson, 75 Ala. 363), and is, therefore, wanting in equity. It is true that, in passing upon the equity of a bill, its equity will be sustained, if the facts, whether well or poorly pleaded, make out a case for equitable relief, and all defects as to manner or form of pleading will be considered as made; but this presumption does not extend to the addition of facts not set forth. The present bill avers no facts, and all intendments may be resolved in favor of the manner or form of pleading, and it would still be wanting in equity.

The law and equity court erred in not sustaining the motion to dissolve the injunction for want of equity in the bill, and the decree is reversed, and one is here rendered sustaining the motion and dissolving the injunction.

Reversed and rendered.

Dowdell,, C. J., and Sayre and Somerville, JJ., concur.