| [1] | CIRCUIT COURT OF APPEALS, THIRD CIRCUIT. |
| [2] | No. 9371. |
| [3] | 1947.C03.40110 <http://www.versuslaw.com>; 161
F.2d 87 |
| [4] | decided.: April 21, 1947. |
| [5] | SIMS v. GREENE. |
| [6] | C. Russell Phillips, of Philadelphia, Pa. (Sidney L. Wickenhaner,
Albert J. Schneider, Montgomery, McCracken, Walker & Rhoads and
Raymond Pace Alexander, all of Philadelphia, Pa., on the brief), for
appellant. |
| [7] | Walter A. Gay, of Philadelphia, Pa. (Gerald A. Gleeson, of
Philadelphia, Pa., on the brief), for appellee. |
| [8] | Author: Biggs |
| [9] | Before BIGGS, GOODRICH, and KALODNER, Circuit Judges. |
| [10] | BIGGS, Circuit Judge. |
| [11] | Many of the facts pertinent to the present appeal are stated in our
opinion in Sims v. Greene, 3 Cir., 160 F.2d 512, and need not be repeated here. It is sufficient to state
that following our reversal of the temporary restraining order or
injunction originally issued by the court below on December 2, 1946, and
after the remand of the case the learned trial judge on March 12, 1947,
entered a preliminary injunction in form and effect substantially
identical with the temporary restraining order or injunction disposed of
by this court on the prior appeal. At or about the same time the court
below filed findings of fact and conclusions of law. See Rule 52(a) of the
Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
Greene appealed from the order of March 12. We granted
supersedeas and set the appeal down for argument on April 7, specifically
directing the District Court to proceed to hear the case pending the
disposition of the appeal. |
| [12] | We conclude that the preliminary injunction must be set aside. There
are several reasons for our conclusion. The preliminary injunction was
issued on the identical record which was before this court on the prior
appeal. The allegations of the pleadings and affidavits filed in the cause
are conflicting. Such conflicts must be resolved by oral testimony since
only by hearing the witnesses and observing their demeanor on the stand
can the trier of fact determine the veracity of the allegations made by
the respective parties. If witnesses are not heard the trial court will be
left in the position of preferring one piece of paper to another.
Greene was given no opportunity to present oral testimony on
his behalf except for one witness*fn1
whose testimony was immaterial to any issue presented by the pleading.
Sims insists that Greene was permitted to offer in evidence
certain documents material to the issue but an examination of the record
indicates that these documents, at least the most important of them,*fn2
were read into the record by Greene's counsel in his
protracted cross-examination of Sims. Questions asked by counsel are not
evidence. The truth of the matter is that Greene was given
no fair opportunity to present testimony prior to the issuance of the
preliminary injunction. |
| [13] | The issuance of a preliminary injunction under such circumstances is
contrary not only to the Rules of Civil Procedure but also to the spirit
which imbues our judicial tribunals prohibiting decision without hearing.
Rule 65(a) provides that no preliminary injunction shall be issued without
notice to the adverse party. Notice implies an opportunity to be heard.
Hearing*fn3
requires trial of an issue or issues of fact. Trial of an issue of fact
necessitates opportunity to present evidence and not by only one side to
the controversy. It should be pointed out also that subsection (b) of Rule
65 provides that a motion for a preliminary injunction "shall be set down
for hearing*fn4
* * *" and speaks of the motion coming on for "hearing". |
| [14] | It is also pertinent to observe that the predecessor to Rule 65 was
Equity Rule 73, 28 U.S.C.A. § 723 Appendix, and that this rule was copied
in haec verba from Section 17 of the Clayton Act, 28 U.S.C.A. § 381. It
has never been supposed that a temporary injunction could issue under the
Clayton Act without giving the party against whom the injunction was
sought an opportunity to present evidence on his behalf. The theory of
Rule 65, of Equity Rule 73, and of Section 17 of the Clayton Act, is that
the trial judge may issue a temporary restraining order if he thinks it
necessary to preserve the status quo; that the order may endure for twenty
days but for no longer without the consent of the party against whom it
issued; that within the twenty day period, which affords the opportunity
for hearing, such facts must be presented to the court as will justify the
tribunal, in the exercise of its sound legal discretion, to issue a
preliminary injunction. |
| [15] | If anything more was required to indicate with certainty that a
preliminary injunction may not issue without giving the party sought to be
enjoined an opportunity to present evidence on his behalf, it is furnished
by the provisions of Rule 52(a) which requires the court, in all actions
"tried upon the facts without a jury" to state separately its conclusions
of law and "in granting or refusing interlocutory injunctions" "similarly
[to] set forth the findings of fact and conclusions of law which
constitute the grounds of its action." The conclusion is inescapable that
since a district court is required by the rule to make findings of fact,
the findings must be based on something more than a one-sided presentation
of the evidence. Finding facts requires the exercise by an impartial
tribunal of its function of weighing and appraising evidence offered, not
be one party to the controversy alone, but by both. A helpful analogy is
supplied by the Pennsylvania law. See Varzaly v. Yuhasz, 128 Pa. Super.
314, 318, 193 A. 63. It is appropriate to point out also that after
evidence has been presented by both sides an opportunity must also be
afforded to both sides to argue the effect of that evidence to the court.
Cf. Morgan v. United States, 304 U.S. 1, 58
S. Ct. 773, 999, 82 L. Ed. 1129. Since
Greene was not given the opportunity to present evidence on
his behalf (and of course was not afforded the opportunity to argue it),
the preliminary injunction should be set aside even if there were no other
ground for doing so. |
| [16] | The court erred in another respect, however. The findings of fact are
insufficient. Finding 17*fn5
will not sustain the preliminary injunction and Sims can point to no
stronger finding. To justify the granting of a preliminary injunction
there must be a showing of irreparable injury during the pendency of the
action and, of course, a finding of fact to such effect. Murray Hill
Restaurant v. Thirteen Twenty One Locust, 3 Cir., 98 F.2d 578; American Mercury v. Kiely, 2 Cir., 19 F.2d 295. The attention of the trial court is again directed to
Yakus v. United States, 321 U.S. 414, 439-440, 64 S. Ct. 660, 88 L. Ed. 834; to
Chapters 52 and 65 of Moore's Federal Practice and to the authorities
cited therein. In the case at bar the learned judge made no finding that
irreparable injury would be wrought to Sims if a preliminary injunction
was not granted. |
| [17] | The order of the court below granting the preliminary injunction will
be reversed. |
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| Opinion Footnotes | |
|
| |
| [18] | *fn1
Judge Fred A. Isgrig. His testimony need not be repeated
here. |
| [19] | *fn2
For example, the call for an extra session of the General
Conference. |
| [20] | *fn3
At common law, the word "Hearing" meant the trial of a chancery suit. See
1 Bouv.Law Dict., Rawle's Third Revision, p. 1429. |
| [21] | *fn4
Emphasis added. |
| [22] | *fn5
As follows:
"By virtue of the circumstances recited in the foregoing findings, the
salary and emoluments due the plaintiff have been discontinued by the
A.M.E. Church, confusion exists as to the authority and power to supervise
the affairs of the Church in the District, and the general management and
direction of the affairs and property of the A.M.E. Churches within the
First Episcopal District have been adversely
affected." |