Fair v. Cummings

ON THE MOTION. GARDNER, J. Motion is made by counsel for appellee to dismiss this appeal, upon the ground that, after the rendition of the decree overruling the motion to dismiss the temporary injunction, the complainants proceeded with the examination of witnesses upon the merits of the case. It is insisted that this was a waiver of the right to review by appeal the said decree. (1) The original bill attacked the validity of the mortgage, for want of consideration, duress, etc. The injunction sought by the cross-complainant was merely an incident to the main cause, and the decree overruling the motion to dissolve the same in no manner affected the merits of the case. In short, the merits of the case were in no manner involved in the question of dissolution or retention of the temporary writ of injunction. We are unable, therefore, to see how the mere fact that the complainants pro-ceeded to the examination of witnesses on the merits of the case could in any manner be construed as a waiver of the appeal on the decree overruling the motion to dissolve the injunction. The motion to dismiss the appeal is therefore overruled.