Opinion
August 14, 1951.
Petition for review from the Circuit Court for Polk County, D.O. Rogers, J.
Paul Ritter, Winter Haven, Walter W. Woolfolk, Lake Wales, and Gunter Stephenson, Bartow, for petitioner.
H.E. Oxford and Oxford Oxford, all of Lakeland, for respondent.
This cause is before us on Petition for Writ of Certiorari to review an order granting a temporary injunction without notice. The injunctive order which Petitioner desires this Court to review and quash was entered by Honorable D.O. Rogers, Circuit Judge in and for the Tenth Judicial Circuit.
On June 28, 1951, respondent Joyner brought a bill in Chancery alleging that he was the owner of certain land which petitioner Sheriff had advertised for sale on the July 1951 Rule Day pursuant to an execution issued January 28, 1948, on the law side of the Court in behalf of the State of Florida as plaintiff against Charles Wenrich, defendant, and respondent Joyner and another as sureties. Obviously the execution was to enforce judgment of forfeiture of a bail bond on which respondent Joyner was a surety. There is no allegation that the execution, the proceedings upon which it was based, or the advertisement were in any way illegal, irregular or improper, but respondent prayed that petitioner Sheriff be enjoined from selling the land.
Outside of a bare conclusion of the pleader, "that to give notice to the defendant would defeat the purpose for which relief is sought herein and that sufficient time does not exist to permit a hearing to be held," there is not the slightest attempt in the bill or anywhere else in the record to indicate any reason why notice of application for the injunction could not have been given.
On the same day the bill of complaint was presented and without any notice or hearing, the Chancellor granted a restraining order enjoining petitioner as Sheriff of Polk County from selling the land upon which levy had been made.
We have repeatedly held that an equity Court does not have jurisdiction to enjoin execution sales unless fraud is clearly, positively and unequivocally asserted as a basis for such relief. Jeffery Lumber Co. v. Coleman, 149 Fla. 704, 6 So.2d 821; Rosenstone v. Johnston, 93 Fla. 319, 111 So. 630 and Peacock v. Feaster, 52 Fla. 565, 42 So. 889. Respondent had an adequate remedy at law, his allegation by way of a conclusion to the contrary notwithstanding. See Sections 903.27, 903.30, 55.37 and 55.38, Florida Statutes 1941, F.S.A.; also Garcia v. Pardo, 63 Fla. 429, 57 So. 974; McCall v. Matheson, 66 Fla. 157, 63 So. 701; Barnett v. Hickson, 52 Fla. 457, 41 So. 606; Robinson v. Yon, 8 Fla. 350.
Moreover, had this been a proper case for invocation of equitable jurisdiction the injunction was improperly issued because the bill fails to contain sufficient, if indeed it contains any, facts which may be said to justify or warrant the issuance of an injunction without notice. See 31 F.S.A. Equity Rule 73; Savage v. Parker, 53 Fla. 1002, 43 So. 507; Godwin v. Phifer, 51 Fla. 441, 41 So. 597 and cases therein cited.
Our opinions upon the subject of the issuance of a temporary injunction without notice are not only legion but are uniform and, we believe, quite clear. Under the facts and circumstances disclosed by the transcript of the record, and in conformity with our prior adjudications, we are forced to grant petitioner's prayer for the issuance of a Writ of Certiorari and hold that the Chancellor committed harmful and therefore reversible error in entering the challenged order.
The Writ is hereby granted and the temporary restraining order quashed.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.