Bartolo Thebaut and Franklin Glazier, Appellants, vs. Antonia A. Canova, et als., Appellees, 11 Fla. 143

DOUGLAS, J.. delivered the opinion of the Court, .In this case a bill was filed in the Circuit Court for Duval county, praying an injunction might issue t'o restrain the defendants from erecting a steam mill within the corporate limits of the City of Jacksonville.

The complainants allege in their bill, “ That if the defendants are permitted to go on and erect and complete said steam mill, and occupy the same, the injury to complainants -and their families respectively, as well as to their property, will be irreparable, and will inevitably obstruct the free use of their property, so as essentially to interfere with the com fortable enjoyment of life and happiness, “ That the constant noise and smoke occasioned by the use and employment of the steam mill and machinery in the immediate vicinity of their property, used as residences for their respective families, will inevitably result in the loss of comfort and happiness of your orators, respective families, and tend to render the air around their houses unwholesome and disagreeable. “ That the mill and machinery, if completed and opera ted by defendants, will cause irreparable injury to their property by greatly reducing its value, endangering it by fire and sparks, and rendering it uninhabitable by their families from the constant annoyance from noise and smoke.” These are the material allegations in the bill upon which the injunction was asked and granted.

Upon the filing of the bill, and before the subpoena was issued and served, a petition teas presented to the Judge of the Eastern Circuit, who was a party complainant in the bill, stating and setting forth that fact, and asking that such an order might be made in the premises as would enable the complainants to have the suit tried by a competent tribunal.

Upon the hearing of this petition, an order was made by the Judge, directing the transfer of the cause to the next adjoining Circuit, and ordering the Clerk of the Circuit Court for Duval county to transfer the papers in the cause to the Clerk of the Circuit Court of Nassau county, Suwan-nee Circuit. On the hearing of the cause, the Judge of the Suwannee Circuit granted an injunction in accordance with the prayer of the bill, restraining the defendants from constructing and erecting the steam mill, and directing the Clerk of the Circuit Court of Nassau county to issue a writ of injunction for that purpose.

At a subsequent day, the parties complainants and defendants appeared before the Judge of the Suwannee Circuit with affidavits and other proofs, one of the defendants having answered the bill, and the defendants thereupon moved the Court to dissolve the injunction’ heretofore granted in the cause. This motion was resisted upon the ground that one of the defendants had not answered the bill, and that the answer filed by the other defendant was evasive, uncertain and insufficient.

Upon the hearing of the cause, the- Judge refused to dissolve the injunction, and ordered and decreed, “ That the injunction do continue in full force for the present, and that the defendants be allowed to amend their answer.” From this order and decree of the Court below an appeal is taken to this Court. The first objection and ground of error taken in the argument at bar is, that at the time the order was made by the Judge of the Eastern Circuit to transfer the cause to an adjoining Circuit, there was no suit pending in Duval Circuit Court as contemplated by the 1st

section of the Act of the General Assembly, approved 24th of January, 1851, which provides, “ That whenever any cause may be pending in any of the Circuit Courts of this State, and the same cannot be heard, tried or determined by reason of the disqualification of the Judge of such Court to hear and determine the same, it shall be lawful for either party thereto to present his petition to sucli Judge, praying that said cause be transferred to some other Circuit Court; and it shall be the duty of the Judge so disqualified to have said cause removed to some Court in the next nearest Circuit.” What are the disqualifications of a Judge is shown by the Act of the General Assembly approved Dee. 4th, 1862, which provides, “ That no Judge shall sit or preside in any cause to which he is a party, or in which he is interested,” &e.

It is urged, that as the Constitution of this State, by the 4th and 6th sections of the 5th Art. provides “ there shall be a Judge for each Circuit, who shall, after his election or appointment, reside in the Circuit for which he has been elected or appointed, and that the Judges of the several Circuits may hold Courts for each other, either for the entire Circuit, or for a portion thereof,” that these provisions of the Constitution limit his powers, and require that the Judge shall only act in the enumerated cases; that the provisions of the Act of the General Assembly, approved the 24th of January, 1851, which give to a Judge the right to transfer a cause which he is disqualified from trying, from his own Circuit to the Circuit of another Judge, are in conflict with the 4th and 6th sections of the 5th Art. of the Constitution, and are therefore inoperative and void; and that in all eases in which the Judge of a Court is disqualified, another Judge must be called to the Circuit under the provisions of the 6th

section of the 5th Art. of the Constitution. We cannot give our assent to this

interpretation of the 4th and 6th sections of the 5th

article of the constitution. They do not deny the power and authority to the Circuit Judge to try and determine any cause that may be brought before him in his own circuit, if the subject matter is within the jurisdiction of the court; and the question of jurisdiction is the appropriate object of legislation in all cases, when not restrained by constitutional inhibition. The 6th

section of the 5th

article of the constitution provides under what circumstances and contingencies the acts of the Judge shall be valid and binding, when performed in another circuit other than that to which he has been elected or appointed. This provision of the constitution was intended to secure the more speedy administration of justice, and to prevent vexatious delays, It was introduced for the benefit of suitors in court, when the Judge was disqualified from any cause from holding the court in his circuit or a part of his circuit.

The act of the 24th January, 1851, “ providing for the more effectual administration of justice in the courts of this State,” by authorizing- the transfer of suits to another circuit, when the Judge of the circuit in which they arise is disqualified from trying them, is not in conflict with the 6th

section of the 5th

article of the constitution, but in aid thereof, and remains in full force and effect. The Judges in such cases are not acting for each ether, but for the citizen, who has presented his case before the court for its adjudication. The act of the General Assembly, before referred to, has conferred the necessary power and jurisdiction as it might rightfully do, and this power and jurisdiction is not restrained or denied by the 6th

section of the 5th

article of the constitution. In the case under consideration, the petition for the transfer of the cause to another circuit was regularly filed under the provisions of the act of the 24th January, 1851; the Judge of the Eastern Circuit being one of the parties complainant in the bill, was thereby disqualified from sitting in the case and hearing and determining the matter in controversy ; and the order for the transfer of the cause to an adjoining circuit was properly made.

It is urged in the argument at bar as error that the order made by the Judge of Duval Circuit Court for the transfer of the cause to the Suwannee Circuit is illegal and void, because at the time the order was made there was no suit ■pending in Court as contemplated by the act of the 24th January, 1851; that although the bill had been filed, no subpoena had issued and been served, and that no suit could properly and legally be said to be pending until after the service of the subpoena.

We have given this matter much careful consideration and have been forced to the conclusion that there is a manifest difference in respect to the time when a suit may be said to be pending in Chancery proceedings and in common law actions. It is clear that in a suit in equity, upon the filing of the bill, an injunction or other restraining order may issue, if the same is prayed for, and this before subpoena has issued or been served. Is the cause then pending after injunction issued and before subpoena served ?

The bill cannot, after it is filed, be amended or withdrawn from the files of the Court and custody of the clerk, without the permission and order of the Judge. Is it not, therefore, pending within the meaning of the act of the 24th January, 1851 ?

By the 16th rule of practice in suits in equity in the Cir euit Courts of the United States, which we have adopted, it is provided “ that upon the return of the subpoena as served and executed upon any defendant, the clerk shall enter the suit upon his docket as pending in the Court, and shall state the time of the entry.” This rule is directory to the clerk as to the time he shall enter it upon his docket as pending-in the Court, but for the purposes of the act of the 24th January, 1851, the suit is pending from the time of bill filed.

There is a statute in New Hampshire which provides “ that where any action is or shall be pending in any Court of common pleas, or superior court of judicature in the State, and either party die before final judgment, the action or suit shall not thereby be abated,” &c. Our act of the 24th January, 1851, declares, “ that when any cause may be pending in any of the Circuit Courts of this State, and the same cannot be heard, tried or determined by reason of the disqualification of the Judges,” &c. There is no good reason for making a distinction between the legal effect of the language used in these statutes.

The legal import of the words “ is or shall be pending,” as used in the New Hampshire statute, and the words “ may be pending,” as used in the act of the 24th January, 1851, is the same. In the construction of the New Hampshire statute, their Courts have decided that, strictly speaking, an action cannot be said to be pending until the writ is sued out and served. Until then, the writ is under the control of the plaintiff or his attorney, and may be altered and amended as he pleases, or even destroyed; but after it is served, any alteration, without the leave of the Court, is a forgery.

By the practice of New Hampshire, the writ always contains the declaration in which the cause of action is set forth at length, and the service of the writ is the commencement of the action; Clindenia vs. Allen, 4 New Hamp. Rep., 385. It is believed that in suits at law the same

interpretation should be given to the words “ maybe pending,” used in the act of the 4th January, 1851, as is given by the Courts of New Hampshire to the words “is or shall be pending,” employed in their statute; and that, in suits at common law, the action would not be considered as pending until after the service of the writ. Under the statute of New Hampshire, their Courts have held that in petitions for divorces, partition, &e., they may be considered as pending in Court as soon as they are filed with the clerk. 4 New Hamp. Rep., 386.

In proceedings in Chancery, when the bill has been filed with the clerk, the suit may be said to be pending ; which means nothing more than “ remainingundecided” It has passed beyond the control of the complainant or his solicitor, and neither of them may take it from the files of the Court, alter or destroy it, without the consent of the Court first obtained. It becomes, from the moment it is filed, under the control of the Court and in the custody of its officer, the clerk, who is responsible for its safe keeping.

It is not questioned that an injunction may issue upon the presentation of the bill to the Chancellor after it has been filed and before service of the subpoena. In many cases it is important to the ends of justice that the party defendant should not be apprised of the filing of the bill against hiriq and the granting of the injunction or other order; otherwise it would enable him to defeat the object of the bill and the relief asked, by removing property or doing other acts intended to be restrained and prohibited by the injunction or order of the Judge.

It cannot be that the Judge, in deciding on these grave and important matters, is doing so in a suit not pending before him. We hold the true intent and legal construction of the statute to be, that in common law actions the suit is pending from the time of the service of the writ, and, in Chancery proceedings, it is pending from the time of filing of the bill with the clerk in his office.

It was contended by the appellant’s counsel in the argument, as a ground of error, that the injunction and subpoena were served on the defendants at the samo time, and that the service was made by the Sheriff of Duval county and not by the Sheriff of Nassau county, from the clerk of which Court the writs of injunction and subpoena emanated. We see no error in this. We have already shown that a writ of injunction may issue upon the filing of the bill and before subpoena served, and there can be no lega! objection that they are both served on the defendant at the same time.

Nor can there be any valid objection that these writs were served by the Sheriff of Duval county. They might legally have been served by a private person, and, uafortiori” the service is good when made by a sworn officer of the law. In the case of an injunction, if the defendant obtains knowledge of its contents and of its having issued, no matter how he gets his information, he is as amenable to the law for the violation of its mandate as if the writ had been regularly served upon him by the proper officer of the Court.

But if these objections ever had any force, they were waived by the subsequent appearance of the defendants, the filing an answer and contesting the suit, and it is now too late to set them up and assign them as error. If the defendants intended to rely upon these irregularities as error, they should not have appeared and contested the suit in the Court below. It was contended on the argument at bar that the answer of the defendant was evasive, imperfect and not responsive to the bill, and for this reason the injunction was properly retained for a more perfect and unexceptionable answer.

The Judge in the Court below may retain an injunction that the parties may amend their answer ; but when the cause comes before this Court on appeal, it is the duty of the Court to examine into the whole record, and to retain or dissolve tlie injunction or dismiss the hill, as the very right and justice of the ease may demand and require. If the injunction should be dissolved on the showing made by the bill and the proofs, regardless of the answer, then this Court will not retain the injunction in order that the answer may be made more perfect. »

If the paper filed in this case, purporting to be an answer, is treated and considered as an affidavit, as was insisted in the argument it should be, then it is evidence of the facts set forth in it. If treated as an answer, though it be an imperfect and evasive one, it is still evidence of the facts so far as it goes, having been put in under oath, and may be taken into consideration by the Court in determining on the propriety of retaining or dissolving the injunction granted.

We now come to consider the most important question presented by the record., and that, is, does the bill of the complainants and the proofs in the case warrant and require this Court to retain the injunction, or should it be dissolved and the parties left to their remedy at law, in order to estabi iish such a state of facts as will justify a Court of Equity to interpose by injunction for their relief?

The proper' solution of this question is not without difficulty, and will involve the consideration of the circumstances under which a Court of Equity should interpose by injunction in a case like the one before the Court. It is not enough that a complainant should allege in his bill that the injury will be irreparable to himself or to his family or property, but he must show/⅛⅛, to enable the Court to judge if the injury will be of the character stated, before he will be entitled to the interposition of the Court.

This branch of the equity jurisdiction has in late years been often invoked both in England, and this country, and if there is a seeming inconsistency in the decisions of the Courts, as shown by the reported cases, it arises more from the difficulty of applying the law to the variety of phases-under which facts are presented to the Courts than from a want of well defined legal principles by which Courts of Equity are governed in such cases.

It is laid down as a governing principle to guide Courts of Equity that, before an injunction will be granted “ ex parte,” and before the hearing on the merits, to restrain a nuisance, it must be shown to be a case of urgent necessity, or one in which irreparable mischief will be produced if the aid of the Court is denied. The object of an injunction before answer is to preserve all things in their then condition, not to determine any by anticipation, or to undo or restore anything. 6 Pick. Pep., 376; Murdock’s case, 2 Bland’s Rep., 461.

If the thing sought to be restrained is in itself a nuisance, and it so appears from tho facts set forth in the bill, the court will give its aid to stay irreparable mischief, and will grant a temporary injunction in the first place until the par. ties can have a hearing at law. But where the thing sought to be restrained' is not unavoidably and in itself noxious, but only something which may, according to circumstances, prove so, then the court will refuse to interfere until the matter has been tried at law. 3 Daniel’s Ch. Prac., 1850, and notes.

The authority of courts of equity, says Judge Story, to interfere by way of injunction in cases of private nuisance, is founded upon the ground of restraining irreparable mischief, or of preventing multiplicity of suits ; and it is not every case which will furnish a right of action at law against a party for a nuisance, which will justify the interposition of courts of equity to redress the injury or remove the annoyance.

On the other hand, where the injury is irreparable, or where loss of health, loss of trade, destruction of the means of subsistence, or permanent ruin to property may or will ensue from the wrongful act or erection, in every sucli case courts of equity will interfere by injunction, in furtherance of justice and the violated rights of the party. Story’s Eq-Jur., sections 925, 926; 16 Vesy, 342; 6 John. Ch. Rep., 46 ; 2 Swanst., 336. In the cáse oí the Earl of Ripon vs.

Hobart, 3 Mylne and Reed, 169, Lord Chancellor Brougham, in delivering his opinion, says: “ If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief without waiting for the result of a trial .at law; and will, according to the circumstances, direct an issue, or allow an action, and, if need be, expedite the proceedings, the injunction being in the meantime continued.

But where the thing souglit to be restrained is not unavoidably and in itself noxious, but only something which may, according to circumstances, prove so, then the court will refuse to interfere until the matter has been tried at law.

The distinction between the two kinds, erection or operation, is obvious, and the soundness of that discretion seems undeniable, which would be very slow to interfere where the thing to be stopped, while it is highly beneficial to one party, may very possibly be prejudicial to another.” It will be seen from these authorities that the true ground for the interposition of courts of equity by injunction not only is that irreparable mischief and injury will be done the defendant if the relief asked is not granted, but that, in a case where the facts clearly show that the act complained of is in itself a nuisance, the court will, upon an ex parte application, grant the injunction; and will in cases where the thing complained of may or may not prove to be a nuisance, according to circumstances, refuse to interfere until the matter has been tried in an action at law.

The jurisdiction of courts of equity over nuisances by injunction, though now unquestioned, is nevertheless of recent growth ; and courts of equity are slow to interfere in cases of doubtful right. The Lord Chancellor,-in delivering his opinion in the case of the Earl of Ripon vs.

Hobart, said: “ Tire great fitness of pausing much before we intercept men in those modes of enjoying or improving their property,, which ar& prima facie harmless or even praiseworthy, is equally manifest.” Courts with great reluctance interfere with the free use and enjoyment of property by its owner as Iris taste or Iris inclination may direct; and it is only in a case where it -is clearly made out that this use and enjoyment is prejudicial and injurious to the rights of others, that it will lend its aid to restrain and abridge this free enjoyment.

They should ponder long and consider well when their aid is invoked for this purpose, and especially should this he so where the thing to be stopped, while it is highly beneficial to one party, may very possibly be prejudicial to none.

Wo have already seen in the statement of this case what are the allegations made.by the complainants in their bill, as reasons why the erection of this steam mill should he enjoined and prohibited, and we shall now examine the evidence to see if, in accordance with the views herein expressed as to the law, the facts require that the injunction should l)c retained ; for unless the facts show that the steam mill when erected will be in itself a nuisance, the injunction must be dissolved and the parties left to their action at law.

If the case stood upon the bill alone, which alleges that if the erection of this steam mill is permitted, irreparable injury will he done to the property of the plaintiffs, and that their health will he greatly endangered, and the comfortable enjoyment of life and happiness greatly abridged, it would still be a question of much doubt if the injunction should be retained.

The court will not interfere to restrain parties in the free rise and enjoyment of their property, unless it can sec clearly that the steam mill, if put into operation, would produce the effect alleged in the plaintiffs’ bill, and would be such a structure as the defendants have no right to erect and can. not erect without those mischievous consequences charged in the bill, which, upon equitable principles, should be not only compensated in damages but prevented by injunction.

It is not doubted that a court of equity has jurisdiction to prevent by injunction that sort of material injury to the comfort of the existence of those who dwell in a neighboring house, which may be produced by the exercise of unwholesome trades or business, and which injury is susceptible of proof. It was said by the Lord Chancellor, in the case of the Attorney General vs.

Cleaver, 18 Vesey’s Rep., 217, “ that what was a nuisance, considered with reference to carrying on a trade, is a question of fact, which it is not very easy to determine.”- In such cases the court has the power to prevent, as well as to remedy, by its restraining order, and there must be something more than the opinion of the plaintiff, however solemnly affirmed, to authorize the interposition of the court.

Unless the court can see from the facts that the steam mill will, if put into operation, become a nuisance, the allegations in the bill that such would be the ease only amount to the expression of opinion by the plaintiffs, upon which the court should not retain the injunction. It cannot be doubted that the steam mill will cause an increased noise in its vicinity, and also that its operation will produce smoke.

These are facts susceptible of proof, but that this noise and smoke will be of a nature to cause irreparable injury to the property of the plaintiffs, or that it wijl endanger their health, or prove a material injury to the comfort of the existence of the plaintiffs who dwell in the neighboring houses, or that it will greatly abridge the comfortable enjoyment of life'and happiness, does not so readily appear from the evidence in this case. It is not every injury to property that will justify the interposition of a court of equity. In the case of the Attorney General vs.

JSTichol, Lord Eldon, said, “ that a diminution of the value of the premises is not a ground for the interposition of this court.” When the injunction is asked on the ground of a diminution of the value of property, the injury sought to be restrained must be such as to produce irreparable mischief, and for which no adequate compensation can be made by way of damages. 16 Vesey, 342; 18 do., 221; 19 do., 624.

In order to justify the interposition of the court, the injury must be irreparable as to property, or material to the comfort of the existence of the plaintiff; and, unless this can be established, the parties are left to their remedy at law. As it is not every injury to property that will induce a court of equity to interfere, so neither will it do so for an imaginary injury to health or to the comfort of the existence of the complainant.

The court must see from the nature of the thing complained of, that, if permitted, there will be a probability of loss of health or injury to the comfort of the existence of the plaint iff. In the case of the exercise of unwholesome trades in the vicinity of a plaintiff, courts have less, difficulty in coming to a conclusion, but we are not prepared to say that the noise and smoke proceeding from a steam mill are as clearly injurious to health, and to the comfort of the existence of those who dwell in the neighboring house, as the business of exercising an unwholesome trade.

It may and doubtless will be that a steam mill in operation will cause some discomfort to those in close proximity to it, (and so would many other things which are not considered in law a nuisance,) but -we do not see from the facts and proofs in this case that this discomfort is so apparent and of such a character as to come under the head of being a nuL sanee in itself, which should be injoined without a trial at law.

It appears from the proofs and was admitted in the argument, that the property of several of the complainants in the bill consisted of vacant and unimproved lots, upo» which,.it is alleged, they design building dwellings. It is now well settled that the owner of a vacant lot which, is intended for a house lot, is not entitled to an injunction to restrain the exercise of am offensive trade in the vicinity thereof, .whereby its value is diminished; such owner has a complete and adequate remedy at law for the injury so caused. 5 Met-calf, 8. In the case of Hart vs. the Mayor of Albany, 3 Paige’s Ch.

Rep. 210, 213, the Chancellor, in delivering his opinion, said : “ If the evidence is conflicting, and the injury complained of and sought to be restrained is doubtful or contingent, that alone will constitute a good ground for withholding this extraordinary power of the court to interpose by injunction.’’ The evidence is very contradictory in this case, and the result of the affidavits on both sides unsatisfactory.

The case stands before this court, not on the hill alone, but on the bill, answer and affidavits, and, after carefully considering the matters embraced in the bill, answer and affidavits, we are of the opinion that the plaintiffs have not presented such a case as calls for the interposition of a court of equity by injunction.

If the facts in this case showed that the erection of this steam mill would he attended with extreme probability of irreparable injury to the property of the plaintiffs, or that it would endanger their lives or health, or prove a material injury to the comfort of their existence, the court would feel itself bound to continue the injunction, for in such a case, clearly established, there can be no hesitation in saying an injunction would be granted.

In this case there is no such satisfactory proof, and the court must act upon facts and not opinions, and these facts must clearly show the plaintiffs are entitled to the relief asked. For the reasons herein stated, this cause is remanded to the court below, with instructions to dissolve the injunction heretofore granted,