S. EMMA RICHARDSON, APPELLANT,
v.
R. KITTLEWELL, APPELLEE
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The court reviewed a lower court's decision to dissolve a temporary injunction and dismiss a married woman's bill claiming separate statutory property. While the dissolution of the injunction was affirmed, the dismissal of the bill was reversed.
The court held that the dissolution of the temporary injunction was proper based on the weight of the evidence presented. However, the dismissal of the bill of complaint was premature and erroneous, as the complainant was entitled to a final hearing after full proofs.
“when application is made to dissolve a temporary injunction upon bill, answer and affidavits filed by the respective parties, the chancellor must be governed by the weight of the evidence, and unless it clearly appears that the ruling upon such motion is against, the weight of the evidence it will not be reversed on appeal.”
Establishes the standard of review for dissolving a temporary injunction.
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Join FLexlaw to unlock all legal intelligenceA married woman filed a bill to prevent the sale of real estate she claimed as her separate property, which was being sold under execution against her…
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Maxwell, J.
The appellant, a married woman, filed a bill in the court below to restrain the appellee from selling under execution against her husband certain real estate which she claimed as her separate statutory property: A tempo rary injunction was granted. Answer and replication were filed, the latter on November 7th, 1898.- On Decernber 20th a motion by the defendant to dissolve the temporary injunction and dismiss the bill, which motion was supported by affidavits and documentary evidence, was granted by the court, and the complainant» appealed from this decree.
As held in Baya v. Town of Lake City, 44 Fla., 491, 33 South. Rep. 400, “when application is made to dissolve a temporary injunction upon bill, answer and affidavits filed by the respective parties, the chancellor must be governed by the weight of the evidence, and unless it clearly appears that the ruling upon such motion is against, the weight of the evidence it will not be reversed on appeal.’’ In this case the evidence was sufficient to sustain the action of the court in dissolving the injunction, and this order will not be disturbed.
The further direction of the decree that the bill be dismissed was error. The cause had been at issue only six weeks and the time for taking testimony had not expired. The complainant had a right to a final hearing after full proofs, and the bill should not have been dismissed upon motion to dissolve based upon affidavits. Baya v. Town of Lake City, supra.
The injunction in this case was granted without notice to defendant, upon complainant filing an affidavit that such notice would accelerate the injury apprehended. Notice to the defendant should have been required, as such an affidavit can have no application to a case, the injury threatened is the making of a judicial sale on legal sale day as advertised by the sheriff.
The decree of the court below in dissolving the injunc riDii granted in the cause will be affirmed, but in so far ns it dismissed the bill of complaint it will be reversed, anil it is so ordered.
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Citator
Cited By
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Masser v. The London Operating Co., 106 Fla. 474 (Fla. 1932)…quity, the chancellor must be governed by the weight of the evidence, and unless his ruling is clearly against the weight of the evidence, it will not be reversed on appeal. See Baya vs. Lake City, 44 Fla. 491, 33 So. 400; Richardson vs. Kittlewall, 45 Fla. 551, 33 So. 984; High vs. Jasper Mfg. Co., 57 Fla. 437, 49 So. 156; Ogden vs. Baile, 69 Fla. 458, 68 So. 671. Here, even though we should hold that lessees have a right to withhold a due payment of rent where, because of a violation of the covenant to…
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Godwin v. Phifer, 51 Fla. 441 (Fla. 1906)…sserting 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 without 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…1 / 2
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High v. Jasper Mfg. Co., 57 Fla. 437 (Fla. 1909)…y of October, 1908. B. H. Palmer, Jud'ge.” A11 appeal from' this order was taken to this court. The three assignments of error here are to the effect that the Circuit Judge erred in dissolving the temporary injunction. In Richardson v. Kittlewell, 45 Fla. 551, 33 South. Rep. 984, this court in accordance with former rulings held that “upon an application to dissolve a temporary-in junction upon bill, answer, replication and affidavits the chancellor must be governed by the weight of the evidence and his…
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- Baya v. The Town of Lake City, 44 Fla. 491 (Fla. 1902)