Heck v. Vollmer

Alvey, J., delivered the opinion of the court. The appeal was taken in this case, as we suppose, though it does not very distinctly appear,.from the order dissolving the injunction. It is not contended, on this appeal, that the answer of Vollmer does not swear away the equity of the bill, nor that it is in any respect insufficient in its averments to justify the dissolution of the injunction. But it is contended, that because there were two other defendants to the bill, who had not answered, the court below was in error in dissolving the injunction before their answers were filed. As a general rule, it is no doubt true, that where there are several defendants to the bill, a motion to dissolve the injunction should not be heard until they have all answered. This is so where the injunction has been properly granted in the first instance; for it is competent to the parties affected by the injunction to come in at once, and before answer, and move to dissolve upon the insufficiency of the grounds disclosed by the bill. Minturn v. Seymour, 4 John. Ch. 173; Poor v. Carlton, 3 Sum. 70. But this general rule, requiring the answers of all the defendants to be in before motion to dissolve, has exceptions, and is subject to discretion' and modification, according to the circumstances of the case; as where those not answering are mere formal parties, or are infants, or non-residents, and whose answers cannot be material in regard to the facts on which the injunction is founded ; there the answers of such parties will not be required as a pre-requisite to hearing the motion. [510] *Where all, or any particular number, of the defendants are implicated in the same charge, and that charge forms the material ground for sustaining the injunction, there the answers of all, or as many as may be so implicated, should be required before dissolving the injunction, unless for some special reasons shown to the contrary. But if the defendant against whom the gravamen of the charges of the bill rests has fully answered, there can be no good reason why the injunction should not be dissolved, although there be other defendants who have not answered. Depeyster v. Graves, 2 John. Ch. 148; Vliet v. Lowmason, 1 Green, Ch. 404. The general rule an$ its exceptions, were recognized and well stated, by the late Chancellor Bland, in Jones v. Magill, 1 Bland, 190, 193; and the practice in this State, in conformity thereto, may be regarded as well established. Heck, the husband of the appellant, and the judgment debtor in the execution, though made a party defendant, was not embraced in the injunction, and we may readily suppose that he was not particularly anxious to remove the restraint imposed by it. Both he and the sheriff, so far as the real merits, and the questions in controversy are concerned, are formal parties. And the answer of neither of them could be invoked by the appellant to sustain the injunction as against Vollmer, the judgment creditor. We can, therefore, perceive no reason for requiring the answers of those two defendants to be filed, as a pre-requisite to dissolving the injunction, after the coming in of the answer of Vollmer, the main defendant, and as against whose interest the injunction was designed to operate. Nor was the absence or neglect of the appellant’s solicitor, ground against dissolving the injunction. The record shows that the motion to dissolve had been set for the 12th of March; and the order of dissolution states and certifies to this court, that such motion stood ready for hearing on the 3rd day of April, the date of the order. Upon this statement of the court below, in the absence of evidence to the contrary, this court must presume that all pre-requisites had been complied with. Rigden v. Martin, 6 H. & J. 407. The matter standing *ready for hearing, the appellant should have seen to it that she was represented in court, and ready to show cause against the motion. “ The motion,” says Chancellor Bland, in Jones v. Magill, 1 [511] Bland, 181, “ is to dissolve, unless cause shown by the plaintiff; and therefore, on the hearing of it the matter is opened by him, then the defendant is heard, and the argument is closed on the part of the plaintiff. If the plaintiff fails to appear and show cause, the injunction may be dissolved on such default, without any consideration by the court of the bill and answer, which will become absolute at the close of the sittings of the term unless cause shown. But, if the Chancellor is called on during the sittings, as he may be, for his judgment upon the motion to dissolve, and he orders the injunction to be dissolved, then it will not, on any account, be reinstated merely on the same bill and answer.” e ■ In this case the order appears not to have been taken on the default of the appellant without consideration of the motion. The Judge below was called upon for his judgment, and the order of dissolution was passed after “ the proceedings were read and fully considered.” The appellant was not, therefore, entitled to have the order rescinded, and the injunction reinstated upon her application. Indeed, to dissolve the injunction was the only fate for it, on the answer of Vollmer, in the absence of evidence to sustain the allegations of the bill. There is another reason why the injunction should have been dissolved, or rather, why it should not have been granted, and that is, that the bill was filed by a feme covert, in her own name, without the intervention of a xxext friend. Sixxce the adoptioxi of the Code, Art. 45, sec. 4, of vol. 1, this is necessary in all cases where a married woman having xio trustee, sues without the joinder of her husband in axxy Court of Law or Equity in this State, for the recovery, or security, or protection 0 fher px-operty. This is a defect, however, that may be obviated by proper amendment. Order affirmed.