Opinion
(December Term, 1840.)
Where, in an injunction case, there is a probability, from the facts stated in the bill, and not denied by the answer, of the plaintiff's sustaining his claim for relief, a motion to dissolve the injunction upon the coming in of the answers ought not to be granted.
It is not proper to say, "the case coming on to be heard upon the bill, answer, exhibits, etc., it is ordered and decreed that the injunction be continued until the hearing," because here is an absurdity in terms, and a cause can only be heard when it is regularly set down for hearing, according to the course of the court. A motion to dissolve is a mere motion in the progress of the cause, preliminary to its hearing.
THIS was an appeal from an interlocutory order of the Court of Equity of LINCOLN, made in the cause by his Honor, Pearson, J., overruling a motion to dissolve the injunction which had been granted, and directing the injunction to be continued until the hearing. The facts, so far as they are relevant to this question, are stated in the opinion of the Court.
Saunders and Hoke for plaintiffs.
W. J. Alexander for defendants.
This case has been brought before us by an appeal from an interlocutory order of the county of Lincoln, refusing to dissolve and continuing until the hearing of the cause an injunction which had issued upon the filing of the bill.
The bill and the answers are very voluminous, and it is not necessary for the purpose of deciding or of showing the grounds of our decision upon the subject-matter of this appeal to set them forth in detail. It will be sufficient to state that (195) upon the bill and the answers it appears that a weak-minded though not insane man, of handsome fortune and little indebted, entered into a contract with one of the defendants, who was his connection by marriage and in possession of his unbounded confidence, not a man of large estate, and considerably involved in debt, by which he conveyed away nearly all that he had on earth — the house in which he lived, his plantation, negroes, stock and furniture of every description — in absolute property upon a simple engagement, without security, to afford him subsistence during life. It also appears that immediately after this contract was executed differences arose between the parties which led to repeated attempts on the part of the grantor to have it annulled; that in the course of these negotiations the defendant exercised all the powers over the plaintiff's will, which followed upon this change of dominion in the property, such as removing the negroes, taking away the provisions and bargaining for the sale of the house and plantation; that under these circumstances he and the two other defendants, who were cognizant of all that was done, succeeded in obtaining from the imbecile and distressed man at least three negroes and bonds for $2,400; the only consideration for all which was his liberation from the oppressive contract. Now it is not for us to anticipate how these matters shall appear when the cause shall be brought to a hearing, and we are reluctant to express any opinion which may prejudice the case of the defendants. But we have no difficulty in saying that notwithstanding all the matters averred in the answers enough of the bill stands undisputed and unexplained fully to justify the order for retaining the injunction until the hearing. There is such a sufficient probability of the plaintiff's sustaining his claim for relief as to forbid a motion which, if successful, might render any decree then obtained by him altogether unavailing.
We deem it fit to notice a confusion in the statement made up for this Court which, if it corresponds with the entries and orders below, may tend to inconvenience. The transcript states that a motion was made to dissolve the injunction, and then proceeds thus: "The case coming on to be heard upon the bill and answers, exhibits filed and argument of (196) counsel, it is ordered and decreed that the injunction be continued until the hearing." Here is an absurdity in terms. How can the court order the injunction to be kept up until the hearing of the cause when the cause is already heard? A motion to dissolve the injunction does not bring on a hearing of the cause. It is a motion made in the progress of a cause and preliminary to its hearing. The bill, answers and exhibits may be read upon that motion, with a view to the determination upon it. But the cause is not to be heard until it has been set down for hearing; and it is not to be set down for hearing until a full opportunity has been had, according to the established course of the Court, of putting it into a state fit for an adjudication upon its merits.
A certificate will be sent to the court below in conformity to this opinion, and there must be judgment here against the appellant for the costs.
PER CURIAM. Decree below affirmed.
Cited: Miller v. Washburn, 38 N.C. 165.