Pine v. Shannon

The Chancellor. The bill is filed to foreclose a mortgage on land in Hudson county, now owned by Willard E. Dudley. It also prays an injunction against the defendants Dudley and Van Horne, to restrain the latter from further prosecuting a foreign attachment issued out of the Hudson circuit court, in his favor, against John W. Pine, the complainant’s husband, and the complainant; and to restrain Dudley from paying any money in or by virtue of the proceedings in that attachment, or to any one other than the complainant, out of the money due on the bond and mortgage. The bill does not allege that the money, or any part of it, due or payable on the bond and mortgage, has been attached, or that the attachment, or any of the proceedings thereunder, in anywise embarrass the complainant’s suit to foreclose or prevent Dudley in any way from paying the money secured by the mortgage to the complainant. The statements of the bill in no way connect the attachment or the proceedings there [405] under with the mortgage or the mortgage debt. For aught that appears, it has no connection whatever therewith. ■ The bill merely alleges that Dudley pretends that, because of the attachment and proceedings thereunder, he cannot safely pay the mortgage debt to the complainant; and the complainant avers that the attachment is not based o.n any debt due from her. On the face of the bill, there does not appear to be any reason for making Van Horne a party to this suit. The only relief prayed against him is an injunction restraining him from proceeding in the attachment. If there is no connection between the attachment and the mortgage debt, he, of course, ought not to be required to answer the bill. If Dudley falsely pretends that the attachment and the proceedings thereunder render it unsafe for him to pay the mortgage debt to the complainant, that of itself is no reason why Yan Horne should be required to answer the bill. The bill is deficient in averment. The demurrer will be allowed, with costs, and the complainant will have leave to amend, on payment of the costs' of the demurrer.