Bowes v. Hoeg

WESTCOTT, J., delivered the opinion.of the court. The first order made in this cause, and which the appeal brings to our attention, is the order granting an injunction. The objection that the bill was not properly verified to entitle complainant to an injunction was well taken. The affidavit upon which the injunction is based was made by plaintiff’s counsel, and is as follows : “ STATE OF FLOEIDA, Duval 'County. — Personally appeared Charles P. Cooper, one of the complainant’s solicitors to the foregoing bill of complaint, who, being duly sworn, deposes and says: That the statements made in the said bill, as far as the same are disclosed by the minutes and records of said gas light company, and in so far as the same have come otherwise dvreotly to deponent’s knowledge, he knows to be true, and all else he believes to be true.” This affidavit is positive and direct as to no single material fact. The truth of what is sworn to by the counsel is placed upon two conditions: that it should appear by the records and minutes of the corporation, and that the facts must have come di/reotly to his» knowledge. What the records and minutes show, according to his view of the case, is nowhere disclosed; ánd that a single fact has come directly to his knowledge, is nowhere alleged or shown. Such a verification is not sufficient to- justify the court in granting an injunction. (9 Paige, 301, 306 ; 7 Paige, 157.) It cannot be said, from anything that here appears, that the party making this affidavit claims to have any personal knowledge of a single material fact alleged in this connection. Independent of this technical objection, there is no equity in the bill, so far as it seeks the recovery of specific- personal [408] property of Bowes; nor is there any equity, as against Bowes, in the matter of the bills due for January, 1875. Equity will not decree the return of a particular chattel, unless it is of peculiar value and character. The remedy is at law. As to the bills due for gas furnished in January, and which it is alleged that Bowes is collecting under an agreement with the company, the bill itself alleges that the directors, with the assent of the plaintiff, on the 31st December, 1874, ordered that the president and secretary of the company be authorized to run the works on account of the compa/ny, until the further action' of the directors, and no further action of the directors upon the subject is alleged until the 30th of January, 1875, when the lease was made to Bowes. It is unnecessary for us to say anything as to the validity of this lease. That a majority of a quorum of the directory could give him authority to collect the bills for the company, we have no doubt. The bills during the month of January appear to belong to the company, and if the works were run by the plaintiff) as he alleges, he must have run them as the agent of the company. This is the only reasonable construction and effect to be given to these allegations of the bill. His lease .and individual control, even granting the power of this corporation to execute a lease, ended with the year 1874. Such an order could be made at the suit of the company, or at the suit of a stockholder, showing a proper case for injunction against the corporation and Bowes, but not at the suit of a stockholder claiming the fund as his own against the corporation to whom it belongs. Upon the face of the bill there are not facts alleged justifying an injunction, and neither what is called the mandatory order, or the injunction, or the order requiring at the hands of Bowes bond for moneys collected, are proper. After the order granting the injunction was passed, the de■fend'ants, before the next rule day, (the time at which they were required to file a demurrer, answer, or plea,) filed a [409] general demurrer to the bill, and upon the same day the plaintiff entered an order setting down the demurrer to be argued on the next rule day. Thé demurrer was heard and overruled. Upon overruling the demurrer, in the absence of any order, the defendant must' have answered the bill by the next rule day, or the court could have required, in its discretion, an answer to be filed at an earlier day. (Buie1 51, Equity Practice.) No such order, however, was made, but, instead thereof, on the same day leave was granted plaintiff to amend his bill “ by adding parties thereto, and adding affidavit of complainant.” On the 13th of March the plaintiff filed an amended complaint. No new parties were made, and the only difference in the amended and original bill was that the amended bill was verified by the plaintiff, and so much of the prayer of the original bill as asked for a receiver and dissolution of the corporation was omitted. Upon motion, the defendants were ordered to file their .answer to this amended pleading within five days. Before the expiration of five days the defendants filed a demurrer, and before the expiration of the five days the plaintiff entered an order taking the bill' as confessed. The demurrer is stricken from the files. The technical construction of the word “ answer ” in this connection is immaterial. The court should not, upon the filing off the amended bill, limit the right to filing an answer as distinctffrom a demurrer. Upon the amendment of the bill, defendants had a right to interpose a new demurrer. The. authorities upon this question go to the extent of saying that “ the circumstance of the amendment being of the most trifling extent, will not, it seems, make any difference.” (4 Sim., 573; 2 Bro., C. C., 66; 2 Dick., 672; 1 Smith’s Chan. Prac., 2 Am. ed., 214; 1 Hoff. Chan. Prac., 216; 9 Porter, 697; 10 Geo., 113.) The judgment o,f this court is: That the injunction and mandatory orders granted in this cause on the 11th day of February, the order of the 8th of [410] March, requiring defendants to file their answer to the bill of complaint in'five days, the order taking the bill for confessed, and the order striking the second demurrer from the files, are reversed and set aside, and the case is remanded to the court below, where it will stand fpr hearing upon the second .demurrer.