Thrall v. City of Williamsport

Opinion by

Orlady, J.,

This appeal cannot be sustained as the reasons given by the learned judge who entered the decree are conclusive against it. There was an application for a preliminary injunction made under a bill which was' not supported by injunction affidavits or evidence.

The process of injunction should be applied with the utmost caution, and the discretion of the judge acting as a chancellor in granting or refusing a preliminary injunction, will not be controlled by an appellate court unless abused or some well recognized principle of law or equity is violated.

In this case as in Kincaid’s Appeal, 66 Pa. 411, the motion was upon a bill filed and sworn to, but without injunction affidavit or affidavits, of which the Supreme Court says, “ This is a practice which ought not to be countenanced.” A mere general affidavit to the truth of the facts is entirely insufficient, and it is clearly error to grant a preliminary injunction without affidavits supporting the facts stated in tire bill: Gilroy’s Appeal, 100 Pa. 5.

The amended equity rules, adopted January 15, 1894, provide, “ Preliminary injunctions may be granted in accordance witli the present practice, on bill and injunction affidavits, but upon the hearing, at the end of four days, or such other time as may be fixed, the evidence must be taken subject to cross-examination, and ex-parte affidavits will not be received:” 159 Pa. xxvii.

These rules were formulated and adopted to regulate the practice of equity in the several courts of common pleas in the Commonweath, and went into effect on the first Monday of March, 1894. They were established under the direction and by the authority of an act of the legislature, and have all the force and effect of a positive enactment. All the proceedings in equity which are not in conformity with them are irregular and void: Cassidy v. Knapp, 167 Pa. 305.

It is not necessary to consider the case further, and the several assignments of error are overruled.

The decree of the court below is affirmed.