Marble v. Bonhotel

Mr. Chief Justice "Walkee delivered the opinion of the Court: The granting of a temporary injunction by either the court or by a judge in-vacation is -a matter: of sound discretion, and cannot be reviewed, on appeal or error. If upon motion or the coming.in of the answer, the court becomes satisfied that it was improvidently-issued, it would be dissolved. But on the final hearing, it is error for the court wrongfully to make it perpetual, or to wrongfully refuse to do so, and such decree may be reviewed in an appellate court. The awarding of the temporary injunction in this case, even if it was- improperly done, cannot be assigned for error. It is insisted that the court below erred in permitting an amendment of the bill to conform to the proof, inasmuch as it was verified by oath. Such amendments are usually allowed in a court of equity for the purpose of furthering justice. - A court of equity is. liberal- in permitting amendments of the pleadings that complete justice may be done. Wheti allowed, if necessary, terms will be imposed, that undue advantage may not be obtained by the party asking the favor. -ISTor does the fact that the bill is verified by oath necessarily deprive the complainant of the benefit of an amendment. It is, however, no doubt true that he is estopped from so amending his bill as to contradict- facts which he has sworn to be positively true, unless he could clearly show the court that the statement was made in mistake. But when, as in this case, it only enlarges and amplifies the statement, or states additional facts, no objection is perceived in permitting the amendment to be made. It is not necessary now to determine what, if any, effect it-might have upon the injunction, unless the leave was granted without prejudice to the injunction. The statute requires, that notice of an intended application for a change of venue shall be given to the opposite party. This requirement cannot be dispensed with unless formally waived by the opposite party. Hunt v. Tinkum, 21 Ill. 639. In this case no such notice was given, and the court decided correctly in overruling the motion for a change of venue. It is also insisted that the court erred in refusing a continuance of the cause. The evidence sought to be obtained from the absent witnesses only related to issues which had been tried and found by the jury, with the consent of defendant below. The court had already overruled a motion ¡to set aside the verdict of the jury, and we are at a loss to perceive how the evidence of this witness, had it been obtained, could have been material for any purpose at that stage of the proceedings. Even if this were not so, it was not material, as the affidavit does not state that Colonky had authority to sell the property. ¡Nor can we say that the affidavit discloses diligence. It does not appear that his deposition could not have been taken. Having the right to do so, the party cannot neglect to procure his evidence in that mode, and rely upon his attending as a witness under a subpoena, without some good reason for so doing. We now come to the consideration of the main question in the case: Does the evidence support the decree % The issues were formed and submitted to a jury, who heard the evidence and found them in favor of complainant. Whilst the evidence may not be altogether free from doxibt, yet we think it preponderates in favor of the finding of the jury, and is sufficient to sustain the verdict. And a case of this character, like any other, must be governed by the rule that a verdict will not be disturbed by this court for mere doubts as to the proof of a fact. We are not to expect demonstration in the determination of disputed questions of fact. We can, generally, only expect a preponderance of evidence, and in this case we regard it as decidedly in favor of the truth of the bill, and warranted'the decree of the court below. It appears that the questions were all fairly presented to the jury on proper instructions from the court, and no error being perceived in the record the decree must be affirmed. Decree affirmed.