Jacksonville Ferry Co. v. Stockton , 40 Fla. 141 ( 1898 )

Carter, J.:

We deem it unnecessary to consider any of the errors assigned except the seventh, which insists that the court below erred in appointing the receiver without notice to the defendants. Circuit Court Equity Rule No. 46 provides “that in all cases of applications for injunctions, the judge to whom presented, before granting the same, shall be satisfied that sufficient notice of the application has been given to the party sought to be enjoined, and of the time and place when the motion is to be made, and no order for an injunction shall be granted without such notice, unless it is manifest to such judge from the sworn allegations in ‘such bill, or the affidavit of the complainant or other competent person, that the injury apprehended will be done if an immediate remedy is not afforded, when he may grant instanter an order restraining the party complained of until the hearing, or the further order of the court or judge, which restraining order shall have all the force of an injunction until rescinded or modified by the court or judge.” Rule 47 provides, among other things, that “The provisions of the foregoing rule as to notice shall apply to applications for the appointment of receiver, or other extraordinary remedy in equity, to the extent that they may be applicable.” These provisions are plain and imperative, and a cursory examination of this record will disclose the fact that they were not complied with in the present case. No sufficient excuse for failure to give notice of the application for receiver was given, either in the bill or the accompanying affidavits. The parties to the suit all resided in the city of Jacksonville, and there is no allegation that any of them cotild not be served with notice. Indeed, the allegation that complainant believed that Buckman and Harmon would, if notified of the application for a receiver, immediately have a receiver appointed in the United States Court through collusion with Sullivan, implies very strongly that they could have been served with notice by complainant, had he desired to do so. The excuse for not serving notice is alleged in the bill upon belief only, and, in the accompanying affidavit, as a legal conclusion. No facts are anywhere stated in the record tending to show grounds for the belief, either that Buckman and Harmon would immediately by collusion with Sullivan apply to the United States Court for a receiver, or that the marshal would be instructed to seize the property of the appellant company under execution, even if such facts would under the rule excuse notice. The rules above quoted do not authorize the court to act upon complainant’s mere belief, or fears, or legal conclusions that notice would accelerate the injury sought to be averted by the appointment of a receiver, but requires the bill or accompanying affidavits to disclose the facts tending to produce such belief, or to establish such a conclusion. Under these circumstances the court erred in appointing the receiver (Fricker v. Peters and Calhoun Company, 21 Fla. 254; Moyers v. Coiner, 22 Fla. 422; Stockton v. Harmon, 32 Fla. 312, 13 South. Rep. 833; State v. Jacksonville, Pensacola & Mobile R. R. Co., 15 Fla. 201; Moritz & Weil v. Miller, Schram & Co., 87 Ala. 331, 6 South. Rep. 269), and without considering the merits of the bill of complaint, we reverse this order for the reasons stated.

Harmon and Buckman have declined to join in the present appeal. They do not complain of that feature of the decree appealed from which grants an injunction against them. It is, therefore, unnecessary for us to express an opinion as to whether the injunction against them was properly granted.

The decree of May 29. 1894, except that portion which directs the issuance of an injunction against Harmon and Buckman upon complainant’s filing a bond in the sum of $1,000, is reversed, and the case remanded for further proceedings not inconsistent with this opinion.