Gullatt v. Thrasher

McCay, J. The powers of a Court of Equity are in the Superior Court. Though, in many respects, the Judge acts independently of the jury, yet, it is while he is upon the bench, and during the session of the Court, that his functions are performed. His powers during vacation are exceptional, and generally are specially pointed out by law: Revised Code, 3150, 3151. With the exception of that jurisdiction exercised by the Court in the protection of trust-estates, and the property and person of wards in Chancery, (Code, 4162,) there are but few acts which the Chancellor may perform in vacation, except acts to preserve things in statu quo until a hearing, and orders in reference to process; and, as a general rule, these [434] powers are specially granted by statute. The Act of 1869, pamphlet 136, allows a Chancellor to hear and determine a demurrer in vacation, and prescribes how it shall be done. 1. In this case there was no demurrer; the complainants did not, have any notice of a demurrer. The motion was to dissolve the injunction. It is true that the equity of the bill is involved in this motion; but the uniform practice, in this 'State, has been, on a motion to dissolve, to let the bill stand, even though the injunction be dissolved for want of equity. We have no doubt, too, that there is equity in this bill. If its charges be true, the whole of this foundry business contract was unauthorized, and all the proceedings of this administrator, in reference thereto, void and a fraud. It is true the answer and affidavits very completely negative this charge, as to the want of authority, but it is not for the Judge to determine, finally, the issues made by the parties. That is the province of a jury. 2. As to the question, so elaborately argued, whether the note, out of which grew the judgment sought to be enjoined, was for part of the purchase-money for the property bought, or was mixed up with the proceeds of the enterprise, we do not see its importance. If there be no fraud nor illegality in procuring the judgment, (and that question must be held concluded by the judgment,) and if that is assumed, then we do not think that the mere fact that a portion of the company’s profits came from work done for the Confederate government, so vitiates the fund as to make a note founded on a division of that fund illegal. If the enterprise was for the purpose of making this war material, and it could be made distinctly to appear that this was a contest over the results of this illegal enterprise, there would, perhaps, be point in the position taken by the defendant. 3. Taking the answer and affidavits together, we think the Court committed no error, justifying our interference, in dissolving the injunction. Under the rule we have so often [435] laid down, lie has a large discretion in such cases, which we have no right to control unless his discretion be abused. We therefore reverse the judgment dismissing the bill, and affirm the dissolution of the injunction.