Niehaus & Co. v. Cooke , 134 Ala. 223 ( 1901 )

TYSON, J.

—This appeal is prosecuted from a decree overruling a motion to dissolve an. injunction because o<f want of equity in the bill amid upon the denials in the answer. There; is much averred in the bill challenging the right of the respondents to tear up- the chert and gravel upon the sidewalk fronting the property of complainant! which was- placed there by him and his predecessor in ownership of the lots. Whatever may be the rights of the respondents with respect to- this matter, a question we do not decide, if it be conceded that- they have such ai right, it is entirely clear that they have no- right to- injure the stone wall enclosing the lot belonging to- the complainant in the prosecution of the construction! or enlargement of the improvements proposed to be put upon the sidewalk, without first making just compensation for such injury. — Const. (1875), Art. 14, § 7; Const. (1901), Art. 12, § 235; City Council of Montgomery v. Maddox, 89 Ala. 181; Town of Avondale v. McFarland, 101 Ala. 381; City Council of Montgomery v. Lemle, 121 Ala. 609. And to- the effectuation of preserving the complainant’s right to the compensa,tion, guaranteed to- him by the constitution, to be paid to- him before the injury is done, he has á remedy in equity, “by invoking the injulnctive aid of a court of chancehy wholly regardless- of the solvency or insolvency of the municipal corporation and of the inquiry whether! or not lie could recover and realize compensatory damages in an action at law.” — City Council of Montgomery v. Lemle, supra. The bill is mot without equity.

Should the injunction have been dissolved upon the denials in, the answer? “When a, bill avers facts, the burden of proving which is entirely on complainant, if the sworn answer is made o-n knowledge and contains an unequivocal denial of the charges on which the right to an injunction rests, the general rule is that the injunction must be dissolved on the denials in the answer. — 3 Brick. Dig., 352, § 303. Bult even this rule is not universal. — Jackson v. Jackson, 91 Ala. 294. In cases of this character this rule is'mo-re flexible, yielding more to- the particular circumstances, and the chamcellor has a large discretion over the subject, and notwithstanding the denials of the answer, may retain the injunction until a final hearing of the cause. — Chambers v. The Ala. Iron Co., 67 Ala. 353; Mabel Mining Co. v. Pearson Coal & Iron Co., 121 Ala. 567; Birmingham Traction Co. v. Birmingham Railway Co., 119 Ala. 129. In Harrison v. Yerby, 87 Ala. 185, the exception to the general rule ivas recognized and enforced, and in weighing the relative degree of injury or benefit to the parties which would probably ensue °from the maintenance of the injunction on the one hand and its dissolution on the other, the court Avas controlled to a large extent by the fact that one of the respondents Avas a noim-resident of this State. In the bill in this cause, it is averred that the two respondents who- Avere about to- actiA'ely begin the tearing away the chert or gravel on the sidewalk and to- injure the complainant’s lot “are non-residents of the State of Alabama, have no substantial property in this State and are unable to respond in this State to any judgment against them for damages; nor could any final process from any of the courts of and in this State reach any property” of theirs. The answer admits their non-residence, and the allegation that they have no substantial property in this State. It is true it denies their inability to respond to any judgment that may be rendered against them. Wo are of the opinion that this circumstance is a sufficient justification of the discretion exercised by the chancellor as to those respondents. As the motion to- dissolve Avas joint, as is likewise the appeal and the assignments of error, the decree being proper as to- two of the respondents, it must be held proper as to the other respondents without regard to whether it is right or wrong.

But another reason may be assigned justifying the action of the chancellor. It is undoubted that the motion to dissolve the injunction on the denials in the answer could not be entertained by the chancellor unless the answer Avas sworn to. — Rule 32 Ch. Prac., p. 1209 of Code. And the answer of a corporation is not an exception tb the rule. — M. & M. R'y Co. v. Ala. Mid. R’y Co., 123 Ala. 163. The manifest purpose of this requirement is to give to- the ¿lomáis in the answer relied upon to- defeat the equities of the bill, the weight and credence of evidence of their truth, upon which the chancellor is calk'd upon to act. The credence which is to- be given this evidence necessarily depends upon the knowledge possessed by the affiant making the verification:, of the facts alleged. It is apparent from the allegations of the answer that facts without reference to whether they were within the knowledge of one respondent and not in the knowledge of the other except apon information gained fro-in the other, are indiscriminately alleged as* upon the knowledge of all the respondents. To illus-rate, to- the charge made in the bill that Niehaus and Piradlo are threatening with laborers and teams to injure the stone Avail enclosing complaiinant’s lot, the respondent’s answer1, after admitting that Niehaus and Piraldo intended to go- upon the sidtewalk in front of complainant’s property Avitfti laborers and teaans, denies that they threatened or intended in ary AAray to injure the Avail. It Avas impossible for the city or rather its representatiAres, to kno w these facts, except upon information) derived from Niehaus and Piraldo. The agent of the city representing it in the p-reparaion of the ans-Aver, could not, therefore, state positively and primarily the existence of those facts. Furthermore, the respondent, the city of Sheffield, being a corporation, acting, of necessity, in all matters by and through an agent on1 agente, can have no knowledge of any fact, except through its pro-perly accredited agent and, for that matter, could not make am -antover in any other Ava.y. The ansAver does not disclose who- its representative Avas, in making -the statements contained in it, or that he was acquainted Avith the facts stated. Nor are we aided in this matter by the affidavit. If the affiant AArho> made the Arerification represented the municipality in making the statement of facts contained in the aaiSAver, this, is not shown by the affidavit, nor is it shown by the affidavit that! he was acquainted with the facts. It Avas said in The Fulton Bank v. The N. Y. & T. Canal Co., 1 Paige, 311 (cited approvingly in Griffin v. The State Bank, 17 Ala. 258): “The case of a corporation defendant is an anomaly in the practice in relation to the dissolution of an injunction. In most cases, the injunction is dissolved as matter of course, if the answer is perfect and denies all the equities* of the bill in the points upon which the injunction! rests, it is not!, however, a. matter of course to dissolve thp injunction where the defendant acts in a representative character and founds his denials of the equity of the hill upon information and belief only * * *. But no dissolution of the injunction can be obtained upon the answer of a corporation, which is not duly verified by the oath of some officer of the. corporation, or other person who- is 'acquainted Avith the facts contained therein.”

The fact, that Niehaus. or Biialdo, Avho> aire charged as being actively engaged in the wonk which if carried out AA'ould result in injury to complainants lot and who know better than any one else Avhat they intended to do, did not also malee oath to the answer, is a circumstance worthy of consideration in giving weight and credence to the denials contained in, it. Furthermore, they should not, be allowed to support their denials for the purpose of giving probative force to them by hearsay evidence. Especially is this true Avhen each of them are fully acquainted Avitli facts alleged in the bill and can depose primarily to their existence or nonexistence. And so far as the respondent, the city of Sheffield, is concerned, we feel that we are authorized in saying that'the ansAver discloses that the affiant kneAV nothing of his. oavh knowledge of the facts upon Avhich the denials are predicated going to the equity of the bill pointed out by us. It, too, relied upon a mere hearsay affirmation, Avherai primay evidence was attainable. Upon the question under consideration the case cannot possibly be stronger than one in Avhich the answer denies the equity of the bill upon information and belief. — Calhoun v. Cozens, 3 Ala. 503; C. & W. R’y Co. v. Witherow, 82 Ala. 194 With this dubious proof in support, of the denials of the. ansAver, it cannot be said that the court cannot see a good reason in the facts disclosed, aaíiv the injuncton should be retained. — Rembert v. Brown, 37 Ala. 671.

Affirmed.