Doughty v. Somerville & Easton Railroad

Randolph, J. Mr. Doughty filed his bill in the Court of Chancery, setting forth such matters which the Chancellor deemed sufficient to authorize him to enjoin the defendants from [630] further proceeding, and which if correct, according to his allegation and understanding, would be sufficient to warrant ia perpetual injunction; but the Chancellor afterwards, on application, made an order dissolving the injunction; and from that order the complainant has appealed to this court, as he has a perfect right to do, as well by. the practice of the court as by statute. 26 Wend. 115; 4 Jno. R. 310; Rev. Stat. 921. The Chancellor having granted a stay of proceedings until the coming in of the appeal, we are now asked to extend that order to the hearing; and the first question raised, is as to the power of the court to grant such an order; it being, .as alleged, an exercise of original jurisdiction, and we but an appellate tribunal. I had supposed that the question of power had been considered settled in this court, as well from its various exercises as from the discussion and opinions delivered in the Chegary case. The right to grant such an order must exist in the very nature of things. To deny it is to deny the right of appeal in the case; for if we have no power to protect the subject matter of the appeal, then is the right nugatory, it would be worse than useless for us to hear the merits of the appeal argued, and to decide thereon three or six months after the evil complained of has been suffered to be committed, and has become irremediable or the injury irreparable. Nor is the granting a temporary order at this time any more an exercise of original jurisdiction than the reversing, at the hearing, of the order of the Chancellor dissolving the injunction ; for that would be in fact granting a perpetual injunction. If we have that power, as of course we must have, then we must also have the power to protect the rights of the parties within the jurisdiction of the court until the cause can be heard. And as a mere question of power or right of jurisdiction, I see no distinction between this case and the ordinary case of a stay of execution or proceedings in the court below. Both are dependant on precisely the same principles; but in the exercise of the power by this court, there may be much more difficulty and delicacy in the one than in the other. Why is it that we grant, even as a matter of course, a stay of proceedings in the court below I Why, simply to preserve our own jurisdiction of the case, and to protect the rights of the [631] parties till they can he heard, according to the rules and practice of this court. And is not the granting a rule of the kind now asked for, precisely for the same purpose, based on the same principles ? The ordinary rule, perhaps, stays an execution and salo of mortgaged premises, which might he set aside and the parties restored to their rights without the order of stay; hut cases may arise when, unless such a rule as is now asked for is granted, the property in dispute may he destroyed, before the hearing, or the parties placed in such a situation, that although we may then reverse tho dissolution and revive tho injunction, onr whole proceeding may he nugatoiy and the party without remedy in this or any other court. So that in fact the reason for tho existence of the power is stronger in a ease of this kind than in an ordinary stay. Formerly the mere appeal was a stay to all proceedings ; hut about 1801 tho rule was changed in England, 15 Vesey, 184; and the practice now is, either for the Chancellor to grant an order to stay proceedings till the hearing, or for this court, on application, to make the order. Edw. on Injunctions, 229; 15 Vesey, 182; 3 Paige, 381; and in Sea Insurance Co. v. Ward, (see 20 Wend, 590,) the Court of Appeals of New York recognized their power to modify or even dissolve an injunction before the hearing, when it becomes necessary to prevent the waste or destruction, of the property. ££ We should do here,” says Nelson, Oh. J., “what the Court below would he called upon to do in a judicious exercise of its powers.” I am aware that most of che cases are those of mere ordinary stay of proceedings; hut that arises in the first place from such being frequent, whilst such as the present case seldom occur. And in tho next place, because the courts and the authors on the subject haye never made and never could make any distinction in principle between one set of cases and another. They lay down the principles and tho general practice, which apply to all casos, including, of course, those like the present. If injunction cases formed an exception to the general rulo, I think some case or some author would have pointed it out, or some Court have refused the order to stay upon the ground of defective power in the court; but I find no such distinction or refusal. The or [632] dinary rule of stay, and such as the present, we have seen and heard on the same principles. I think that we may go further, and say that they are only different modifications of the same rule; a decree is appealed from, and the ordinary rule stays all proceedings in the cause, whether in the Court below, or by its officers, or the parties, or others. For the time it puts a stop to the decree and to all proceedings by virtue thereof, and leaves the parties as if the decree had not been pronounced, and the judgment or deed thereby set aside in full force. So in a case like the present, the order to dissolve is appealed from, and a stay is a mere stay of proceedings by]virtue thereof; that is, like the common order, it stays for the time the operation of the order appealed from precisely as if it had not been made, and whilst it issues no new injunction, it simply has the effect of reviving the old one, or modifying it, till the appeal can be heard; leaving it in force like the deed or judgment in the common case. And herein is the difference between the appeal from an order dissolving an injunction, and one from an order refusing an injunction. 'The former issues no new injunction till the hearing, but simply suspends till then the order complained of, leaving the case to stand as though the order had not been made; whilst in the latter case a stay is an original injunction, issued where none ever had existed before, and which could not be allowed without first hearing and deciding on the entire merits of the case ; and yet even that could be allowed at the hearing — a pretty conclusive answer to the question of jurisdiction. Of the right to grant the rule I think there can be no doubt. As to the exercise of it in the present instance there is much more doubt. It must rest with the sound discretion of the court. Never to issue it, would destroy the right of appeal in such cases; always to grant it as of course, would be oppressive and require some modification of the power of granting injunctions, and render the dissolving an injunction and appeal equivalent to a continuation of the injunction. We must look not to the merits of the appeal so much as the circumstances of the case and the situation of the property. If the complainant is right in his positions and we to determine on the the hearing of the appeal, then there is no power in the defendant to construct [633] the road through him, and it should not be done, because it may work a great injury to him, and be of no benefit to defendants. But if he is wrong, then an entire stay of the Company wonld bo oppressive to them and injurious to the public. I think, however, that the Company may be suffered to go on and make and file their survey, and do every other act except the entering and breaking ground, so that when tbo appeal is determined, if it be for the complainant, no irreparable injury is done to him; and if for defendants, that they may immediately proceed and make the road through complainant’s grounds; and that the order of stay should be modified accordingly. In this opinion McCarter, Judge, concurred.