Opinion
11-17-1871
MULLER & c. v. BAYLY & al.
Meredith, for the appellants. E. Y. Cannon, for the appellees.
1. Real estate is conveyed to a trustee for a married woman, the whole equitable estate being vested in her, free from liability for her husband's debts; and with express power in her to mortgage, convey in trust or otherwise pledge the property or any part of it, and the trustee is on her request, to sell it and pay the proceeds to her or reinvest. The wife may subject the property to pay the debt of, or raise money for, her husband.
2. That money is scarce, and that the large cash payment required at a sale under a deed of trust, will be attended with great if not irreparable loss to the owner of the property, is no ground for an injunction to the sale.
3. § 4 of ch. 179, Code p. 736, applies only to a pure bill of injunction; not to a bill seeking other relief, to which the injunction sought is merely ancillary.
4. In a case of a pure bill of injunction to restrain a sale of real estate in one county, if the plaintiff institutes his suit in another county or corporation, where the defendants answer and do not object to the jurisdiction; the plaintiff cannot afterwards make the objection; and the court may, under its general jurisdiction, hear and determine the case.
5. Both plaintiffs and defendants being present by their counsel, the court makes an order removing a cause to the court of another county, assigning as a reason for making it, that it appears that the cause had been improperly brought in the court. If this reason was unfounded in fact, it would not invalidate the order which the court had power under the statute, Code ch. 174, § 3, p. 719, to make; and to which there was no exception.
6. A Circuit court may make an order to remove a cause to another court, whilst the cause is at rules.
7. A cause having been removed, and received by the clerk, the defendants may, upon notice, in vacation before the next term of the court to which the cause is removed, move the judge to dissolve the injunction which had been granted.
8. In such case the judge may in vacation dissolve the injunction; but he cannot then dismiss the bill.
9. In such case upon appeal, the appellate court will amend the decree, and affirm it; there being no other error in the record.
This is an appeal from an order of a judge of a Circuit court in vacation, dissolving an injunction and dismissing a bill. The facts of the case, and the proceedings in it, so far as it seems to be material to state them, are as follows:
By a deed of post nuptial settlement between Andrew Muller and Julia D., his wife, bearing date the 6th day of April 1860, and duly recorded, the said Andrew Muller, for the considerations therein expressed, conveyed to Lucy Giles, his said wife's mother, certain real and personal estate therein mentioned, in trust for the separate use of the said Julia D. Muller, " and upon the further trust," in the language of the deed, " that the said Julia D. Muller shall have power by a writing under her hand, to mortgage, convey in trust, or otherwise pledge, the said property or any of it, and when requested in writing by the said Julia D. Muller so to do, the trustee, Lucy Giles, shall sell the property herein conveyed, or any part of it, and shall either pay over the proceeds to the said Julia D. Muller in whole or in part, or shall invest the same in whole or in part, in other property to be held on the same trusts herein declared, as the said Julia D. Muller may request. And the said Julia D. Muller shall have power, by an instrument in the nature of, and executed as, a will, to dispose of said property or such as shall remain or exist at her death; and if she die not leaving a will, such property, at her death, shall belong to her husband during his life, and at his death, (or, if she survive him, at her death, without will,) shall belong to her children or lineal descendants, or if there be none such, to her next of kin according to law."
Some years after the execution of that deed, to wit: on the 23d day of May 1868, by a deed of trust dated on that day, and duly recorded " between Lucy Giles, trustee for Julia D. Muller, wife of Andrew Muller, the said Julia D. Muller, in her separate right, and as wife of Andrew Muller and the said Andrew Muller of the first part, and Peyton G. Bayly, trustee of the second part," the parties of the first part, by virtue of the authority to that effect vested under the deed of settlement aforesaid, conveyed unto the said Bayly, trustee, " all those certain lots or parcels of ground," & c., " lying and being in the county of Henrico, within or near to the present limits of the city of Richmond, designated by the numbers" named in the deed (fourteen in all): " In trust to secure the full and punctual payment of a certain negotiable note made by the parties of the first part, to said Andrew Muller, and by him endorsed, for the sum of three thousand dollars, bearing even date herewith, payable six months after date, and to secure any renewal or renewals, in whole or in part, of the said note that may by consent take place; and it is covenanted and agreed by and between the parties, that if default be made in the payment of the said note at maturity, or of any renewal thereof, (if such renewal take place), then the said Peyton G. Bayly, trustee, when requested by the holder or holders of said note, or of any such renewal, so to do, shall sell the property herein conveyed, or so much thereof as may be necessary, having first given not less than six days notice of the sale in one or more newspapers published in the city of Richmond. The sale shall be, for cash as to so much of the purchase money as will pay the expenses of sale," & c., " and all prior liens, if any, on the property, and also pay and satisfy the debt herein secured and intended to be secured, and if there be a surplus, upon such credit, as to such surplus, as the trustee may determine; and in other respects, this deed and the trust by it created, shall be governed by, and proceeded in, according to the Code of Virginia applicable thereto. This deed was duly executed by all the parties of the first part, and duly acknowledged by, and certified as to them.
Default having been made in the payment of the said negotiable note, the said trustee, Peyton G. Bayly, at the request of the holder thereof, and in pursuance of the said deed of trust, advertised the property thereby conveyed for sale " at public auction on the premises, on Wednesday, the 16th June 1869, at half-past 5 o'clock P. M., if fair, if not the first fair day thereafter.
But a day or two before the said day of sale, an order was obtained from the judge of the Circuit court of the city of Richmond, to enjoin the said Peyton G. Bayly, his agents and all others, from selling or otherwise interfering with the property conveyed to him as trustee as aforesaid, until the further order of the court. This order of injunction was made upon a bill addressed to the judge of said court, in which bill the said Julia D. Muller, wife of Andrew Muller, suing by said Andrew Muller, her next friend, and the said Andrew Muller, in his own right, were complainants, and the said Peyton G. Bayly, James G. Brooks and Lucy Giles were defendants.
This bill, with the said order endorsed thereon, which was directed " to the clerk of the Circuit court of the city of Richmond," was filed in the clerk's office of the said court on the 15th day of June 1869, the day before the day fixed for the said sale. The bill, after stating the execution of the said deeds of the 6th of April 1860, and the 23d of May 1868, and the general provisions thereof, and that the defendant, James G. Brooks, was the holder of the said negotiable note secured by said deed of trust, contains the following charges: " Your oratrix further charges that the said sum of $3,000 when received, was exclusively used by the said Andrew Muller in the payment of his individual debts, and thus the leading purpose of the deed will be defeated, which is designed to secure to her the sole and separate use, benefit, enjoyment and control of the said property; and whilst, by the terms of the said deed of settlement, power is given to her to mortgage, convey in trust, or otherwise pledge, the said property; yet, it is a power which, when exercised, must be exercised in furtherance or support of the leading object of said deed, which is for the use and benefit of your oratrix, to the exclusion of her husband and his creditors, by the express terms of said deed; and when a mortgage is made, or a conveyance in trust given, it must be, to raise money for the use and benefit of your oratrix, and not to be used, as was done under the deed in this case, to pay the creditors of her husband." " She alleges that the said Bayly, acting under the said deed to him as trustee, has advertised the whole of the said real estate to be sold on Wednesday next at public auction, and she believes and so charges, that the said property, if then sold under a forced sale, under the said deed, will be sold at a ruinous sacrifice; that owing to the scarcity of money, and the depressed condition of the business interests of this community, property is selling at very low prices, far below its real value, and, when forced sales are made, at still lower figures; and she further charges, that owing to the large amount of the cash payment, if the sale is made as advertised by said Bayly, it will be attended with great, if not irreparable loss and injury to your oratrix and her children, who will be entitled to the property in the event she does not dispose of the same by will." The bill then makes the proper persons defendants, prays for an injunction of the said sale; and concludes with a prayer for general relief.
Copies of the said deeds of the 6th day of April 1860, and of the 23d day of May 1868, were filed as exhibits with the bill.
The bond required by the injunction order having been executed, a subpoena, with the said order endorsed thereon, was issued against the said defendants, directed to the sheriff of the said city, and returned " executed" on the defendants, Brooks and Bayly, but " not found and no inhabitant" as to the defendant, Lucy Giles, who lived in Henrico county.
On the 28th of June 1869, the defendants, Bayly and Brooks, appeared by counsel and filed their several answers, to which the plaintiffs, by counsel, replied generally; and the cause was set for hearing as to those defendants, and a new subpoena was awarded against the other defendant, Lucy Giles, directed to the sheriff of Henrico county, and returnable to the following August rules of the said court:
On the 7th day of July 1869, in the clerk's office of the said Circuit court of the city of Richmond, an order of the judge of the said court in vacation, was received by the clerk, in the words following, to wit:
" Julia D. Muller, & c. v. P. G. Bayly, & c.
It appearing that this cause has been improperly brought in this court, it is therefore ordered that the same be removed to the Circuit court of the county of Henrico.
C. H. BRAMHALL,
C. J. 7th circuit.
To the clerk of the Circuit court of the city of Richmond.
July 7th, 1869."
On the next day an order was made in the cause by the said court in term, in these words:
" And at another day, to wit: At a Circuit court of the city of Richmond, held on the 8th day of July 1869, came the parties by their counsel, and the court doth direct that the vacation order entered herein on yesterday be set aside. And it appearing that this cause has been improperly brought in this court, it is therefore ordered that the same be removed to the Circuit court of the county of Henrico."
On the 9th day of August 1869, in the clerk's office of the Circuit court of the county of Henrico, an order of the judge of the said court in vacation, was received by the clerk in the words following, to wit:
" In the Circuit court of Henrico county. In vacation. Muller & wife v. Bayly & al. In chancery. Motion to dissolve injunction.
This day this motion came on to be heard on the notice for the same, the bill, answer, exhibits, the order removing this cause to this court, and the objection of the plaintiff to hearing the motion upon the grounds--1st. That this cause was removed from the Circuit court of the city of Richmond in and during the vacation of this court; and, 2d. That the same had not been placed upon the docket of this court at its regular term. And after argument by counsel, it is ordered, adjudged and decreed that the injunction herein be dissolved, and the plaintiff's bill be dismissed. It is further ordered, that the action of this decree be suspended for thirty days from the date of the entry of the same by the clerk of the Circuit court of Henrico county.
ALFRED MORTON, Judge, & c."
From this order the said Julia Muller, sueing by the said Andrew Muller, her next friend, and the said Andrew Muller in his own right, applied for an appeal to this court, which was accordingly allowed.
Meredith, for the appellants.
E. Y. Cannon, for the appellees.
OPINION
MONCURE, P.
After stating the case, he proceeded: The injunction in this case was improvidently granted, and ought to have been dissolved on motion, even without answer or demurrer. The bill made out no case for an injunction. The post nuptial deed of settlement invests the appellant, Julia D. Muller, with an absolute estate, in equity at least, in the property thereby conveyed to her sole and separate use; and so far from restricting the power of alienation, which is incident to such an estate, unless otherwise provided in the settlement, it expressly gives such power in the amplest form. After conveying the property to a trustee, " in trust for the sole and separate use, benefit, enjoyment and control of the said Julia D. Muller, free from all claim on the part of her present or any future husband or his creditors," the deed declares the conveyance to be, " upon the further trust, that the said Julia D. Muller shall have power, by a writing under her hand, to mortgage, convey in trust, or otherwise pledge, the said property, or any of it; and when requested in writing by the said Julia D. Muller so to do, the trustee, Lucy Giles, shall sell the property herein conveyed, or any part of it, and shall either pay over the proceeds to the said Julia D. Muller in whole or in part, or shall invest the same in whole or in part, in other property, to be held on the same trusts herein declared, as the said Julia D. Muller may request." In pursuance of this ample power and this express trust, the deed of trust of the 23d of May 1868, was executed to secure the debt claimed by the appellee, Brooks, in this case. All the parties in interest, in law or equity, were parties to that deed, and duly executed it--Lucy Giles, the trustee, the said Julia D. Muller, the beneficiary, and Andrew Muller, her husband. The bill charges that the debt secured by the deed is the husband's debt, and though the deed is executed in literal pursuance of the power, yet, that the power was given to be exercised for the benefit of the wife, and not of the husband, and that the execution of the deed, to secure a debt of the husband, was therefore a perversion of the power and a breach of the trust. It does not appear from the deed of trust that the debt thereby secured was the debt of the husband only. It is therein described as the debt of all the parties of the first part of the deed--Lucy Giles the trustee, Julia D. Muller and Andrew Muller her husband. But suppose it was, as the bill avers, the debt of the husband only; or, rather, that the money derived from the creation of the debt was applied to the payment of his individual debts: does that fact, of itself, invalidate the deed? Certainly not. A wife who has an absolute separate estate, with power to dispose of it as she pleases, and therefore with power to throw the proceeds of the sale of it into the sea if she pleases, can surely devote it to the benefit of her husband and to the payment of his individual debts. She can certainly give it to anybody in the world but her husband: and why not to her husband also? When she gives it to her husband, we must closely scrutinize the act, lest it should have been induced by undue influence; for we know that the wife is almost always, more or less, under the influence of the husband, which may be unduly exercised. But if the gift be free and voluntary on her part, and within the terms of her power, it is always a valid, and often a meritorious act. That a wife may give her separate estate to her husband, or devote it to his benefit, is now too well settled a proposition to require a citation of authority for its support. If she be induced by fraud or undue influence on his part to do so, the act will be void. But it is not pretended in the bill, that there was any fraud, or undue influence, or influence of any kind, used by the husband to induce the execution of the deed by the wife in this case. The invalidity of the deed is placed solely upon the naked ground of the incapacity of the wife, though invested with the largest possible powers, to divert her separate estate from her own exclusive enjoyment, and to devote it, or any part of it, to the payment or security of her husband's individual debts.
Then, what other ground of equity is there in the bill? Only the allegations that the time is unpropitious for a sale, or was, when the bill was filed; that money was scarce; and that, owing to the large amount of the cash payment required, the sale, if made as advertised by the trustee Bayly, would be attended with great, if not irreparable, loss and injury to the wife and her children. Certainly these allegations can afford no just ground for enjoining the sale. It is not pretended that the terms of the deed were not strictly pursued by the trustee in advertising the sale; that he required a larger cash payment to be made by the purchaser than was authorized or prescribed by the deed.
Thus it appears that there was no good ground for an injunction; that it ought not to have been granted; and having been improvidently granted, that it ought to have been dissolved on motion, even without the necessity of an answer or of a demurrer.
But it is said that the Circuit court of the city of Richmond had no right to make the order which it did make on the 8th of July 1869, for the removal of the cause to the Circuit court of the county of Henrico; and that, if the cause was improperly brought in the Circuit court of the city of Richmond, as stated in the said order, it ought to have been dismissed, according to the principle of the cases of Randolph's ex'or, & c. v. Tucker & al., 10 Leigh 655; and Beckley v. Palmer & al., 11 Gratt. 625; instead of being removed to the Circuit court of the county of Henrico.
It seems difficult to perceive how the appellants could be prejudiced by removing their cause to another court instead of dismissing their bill; or how they would have been any better off than they now are, if their bill had been dismissed by the Circuit court of the city of Richmond for want of jurisdiction.
But ought the bill to have been dismissed for the want of jurisdiction, supposing it to have stated a case proper for equitable relief?
It is contended, that though the bill states a proper case for equitable relief, that relief could be administered only by the Circuit or County court of the county of Henrico, and not by the Circuit court of the city of Richmond, according to the Code, ch. 179, §4, p. 736, which declares that " jurisdiction of a bill for an injunction to any judgment, act or proceeding, shall be in a Circuit, County or Corporation court, of a county or corporation in which the judgment is rendered, or the act or proceeding is to be done, or is doing, or apprehended," & c. It is contended that this is an injunction suit, within the meaning of that section, that the proceeding injoined, to wit: the sale under the deed of trust, was about to take place in the county of Henrico, and not in the city of Richmond, and therefore that only the courts of the county, and not the courts of the city, have jurisdiction of the suit; though every judge of a Circuit court has, under §6 of the same chapter, a general jurisdiction in awarding injunctions; but his order must, according to §9, be directed to the clerk of such Circuit court as has jurisdiction under §4, and the proceedings thereupon shall be as if the order had been made by such court or the judge thereof.
It is well settled that §4, of chapter 179, aforesaid, applies only to a pure bill of injunction, and not to a bill seeking other relief, to which the injunction sought is merely ancillary. This was expressly decided by this court in the recent case of Winston & als. v. The Midlothian Coal Mining Company & als., 20 Gratt. 686. See also 2 Rob. old Pr. 249, and the cases there cited of Hough v. Shreeve, 4 Munf. 490; Singleton v. Lewis & c., 6 Munf. 397; and Pulliam v. Winston, 5 Leigh 324.
The bill in this case is something more than a pure injunction bill. It seeks to invalidate the deed of trust, upon the ground that it was not authorized by the deed of settlement. And it prays for general relief. As all the parties to the suit, except perhaps the trustee in the settlement, Lucy Giles, seem to have resided in the city of Richmond when the suit was brought, it follows, therefore, that the Circuit court of the city had jurisdiction of the suit, upon the principle of the cases just cited.
But it had jurisdiction of the suit, even if we regard it as a pure injunction suit. A court of chancery acts upon the person, and as a general rule, has jurisdiction wherever the defendant resides or is found within its territorial limits. Sometimes a statute gives to a particular court of chancery special jurisdiction in a particular case. The statute in regard to pure injunction suits is one of that nature. But certainly that statute does not take away or impair the power of a court of chancery of gene al jurisdiction to take cognizance of a case submitted to its decision by the consent of all parties, especially when all of them reside within its territorial limits. If a decree had been made in this suit by the Circuit court of the city of Richmond, showing that it was heard in such court by consent of all parties, surely the decree would not be void for want of jurisdiction, even though the bill were a pure injunction bill, and showed upon its face that the proceeding sought to be injoined was about to take place ontside of the boundaries of the city. So, a so, if the plaintiffs in the injunction suit elect to bring their suit in the Circuit court of the city of Richmond, where all or nearly all of the parties concerned reside, mstead of in the Circuit court of the county of Henrico, it would not lie in their mouths afterwards to say that the court thus selected by them, had no jurisdiction of the suit. The defendants might, perhaps, make the objection, but not the plaintiffs. True, the law in regard to the jurisdiction of an injunction bill was no doubt made chiefly, if not entirely, for the benefit and convenience of the plaintiff in the injunction, but he may waive that benefit; and by bringing his suit in another court, he does waive it, so far as he is concerned.
In this case there was nothing in the bill to show that the property about to be sold was situated outside of the city, or that the sale was to be made outside of the city. The bill was filed by the plaintiffs in the Circuit court of the city, and the two principal defendants, Bayly and Brooks, who resided in the city, filed their answers, making no objection to the jurisdiction of the court. These answers were replied to generally, and the parties were thus at issue: after which the order of removal aforesaid was made. When that order was made there was nothing in the cause showing, certainly, that the property to be sold was situate outside of the city. The advertisement describes it as within 300 yards of the corporation line; but whether without or within that line is not stated. The lots are described as being in Duval's addition, and as being designated by certain numbers in the plan of that addition.
Now, can it be predicated of this case that the Circuit court had not jurisdiction of it when the order of removal was made?
That proposition is sought to be maintained on the authority of the cases of Randolph's ex'or & c. v. Tucker & al., 10 Leigh 655, and Beckley v. Palmer & al., 11 Gratt. 625, before referred to. Do they maintain it? We think not.
In the case of Randolph's ex'or v. Tucker & c., which was decided by a special court of appeals, consisting of three judges of the General court, the suit was brought in the Circuit court of James City county, where none of the defendants resided; to obtain an issue of devisavit vel non in regard to John Randolph's will, which had been admitted to probate in the general court. The defendants resided in other, and generally distant, counties, and the transaction sought to be injoined was to take place in a distant county. The only ground for maintaining the jurisdiction was the service of process on the defendants, Bryan and wife, who happened to be in James City; though they resided elsewhere. The ground of jurisdiction was considered colorable merely. One of the principal defendants objected to the jurisdiction of the court in his answer; and most of them, at the hearing, moved a dismission of the bill for want of jurisdiction. The Circuit court overruled the motion, and the special court of appeals reversed the judgment and dismissed the bill. In that case, it will be observed, that the objection to the jurisdiction of the court came not from the plaintiffs, but from the defendants. If the defendants had been willing to try the case in James City, the plaintiffs, after bringing their suit in that county, would hardly have been sustained in a motion to dismiss it because they did not bring it elsewhere. That case was a peculiar one. It was not a pure injunction suit, and the injunction prayed for " was merely ancillary to the other and principal relief prayed for." That the ground of jurisdiction was merely colorable, and the palpable inconvenience of the place selected by the plaintiffs for the suit, were the reasons which induced the court to sustain the objection of the defendants, and to dismiss the bill for want of jurisdiction.
In the case of Beckley v. Palmer & al., the bill, upon its face, showed that it ought to have been filed in the Circuit court of Fayette county, where the judgment sought to be injoined was rendered, instead of the Circuit court of Raleigh, and the objection was made by, and the decision of the court was in favor of, the defendants, and not the plaintiffs, who had elected to bring their suit in the Circuit court of Raleigh. This was one of the grounds on which this court affirmed the decree of the court below dismissing the bill. There was another ground of dismission, in regard to which four of the five judges who sat in the case concurred, or rather three of them, for Judge Daniel did not state his ground for the affirmance. It is worthy of remark, that in that case the court did not reverse all that had been done by the court below, both on the original bill and the amended bill, and dismiss both bills for want of jurisdiction; but affirmed the decree of the court below, after amending it, by formally dissolving the injunction: thus sustaining, to that extent, the jurisdiction of the court.
Those cases, therefore, cannot be regarded as authority for holding that when the order of removal was made the Circuit court of the city of Richmond had no jurisdiction of the case.
We are of opinion, then, that it had such jurisdiction. And now we come to the question,
Is there any error in the order of removal?
There was first such an order made in vacation, but on the next day the vacation order was set aside, and the same order was made in court. The court order is the one, the validity of which we are now to consider.
The law which authorizes a suit to be removed from one Circuit court into another, is to be found in the Code, ch. 174, §3, p. 719. " On the motion of any party to a suit in a Circuit court, the said court may order it to be removed to any other Circuit court," & c.
It does not appear on whose motion the order of removal in this case was made; nor is that necessary. It does appear that both parties were present by their counsel when the order was made; and the presumption is that it was duly made. The order assigns as a reason for making it, that it appeared that the cause had been improperly brought in the court. Even if this reason were unfounded in fact, it would not invalidate an order which the court had power to make, and to which there was no exception. The court might have thought the cause had been improperly brought into the court, even though the court had jurisdiction to try it. But that a Circuit court has a right to remove a cause therein pending into another Circuit court, and that the Circuit court of the city of Richmond made such an order of removal in this case, the parties being present by their counsel, is conclusive of all question in the appellate court, as to the propriety of such order of removal, no exception having been taken to that order in the court below. That the cause was at rules when the order of removal was made, does not make that order premature. The law authorizing such removal is general in its terms, and does not require the cause to be on the court docket when removed. And now we come to consider the question,
Is there any error in the vacation order of the judge of the Circuit court of the county of Henrico, made on the defendant's motion to dissolve the injunction?
That motion came on to be heard on notice of the same, and on the bill, answers and exhibits, and the order of removal aforesaid, and on two objections taken by the plaintiffs to the hearing of said motion, to wit: 1st. That the cause was removed from the Circuit court of the city of Richmond during the vacation of the Circuit court of the county of Henrico; and, 2d. That the same had not been placed upon the docket of the latter court at its regular term. And after argument by counsel, the said judge ordered the injunction to be dissolved and the bill to be dismissed: and further, suspended the effect of the order for thirty days; no doubt to afford the plaintiffs an opportunity of applying for this appeal.
That the cause was removed during the vacation of the Circuit court of Henrico, can make no difference. Nor can it make any, that the same had not been placed upon the docket of the said court at its regular term, when the said motion and order were made. The law gives to the court, to which the cause may be removed, no discretion about it. Section 4, of ch. 174, p. 719, of the Code, provides that " when any suit is ordered to be removed under this chapter, the clerk of the court from which, shall transmit to the clerk of the court to which, it is removed, the original papers therein," & c.; " whereupon the case shall be proceeded in, heard and determined by the court to which it is removed, as if it had been brought and the previous proceedings had in said court." The directions of this section as to the transmission of the original papers were complied with in this case, and a motion to dissolve the injunction was then made, on notice of the same, to the judge of the Circuit court of Henrico county in vacation, and was heard by him precisely as it would have been if the suit " had been brought and the previous proceedings had in said court; " all of which was in strict conformity with the law. The Code, ch. 179, §12, p. 738, declares that " the judge of a Circuit court in which a case is pending, whereon an injunction is awarded, may, in vacation, dissolve such injunction after reasonable notice to the adverse party. His order for the dissolution shall be directed to the clerk of said court, who shall record the same in the order book." An order of dissolution could have been made in vacation by the judge of the Circuit court of the city of Richmond, at any time before the removal of the cause from that court, and by the judge of the Circuit court of the county of Henrico at any time after the removal of the cause to that court; without waiting, in either case, until the cause was put upon the docket, or until an order of court was made for that purpose.
The judge of the Circuit court of the county of Henrico having power to make the order of dissolution which was made in the case, the next question is, Was it right to make such an order? and that question has already, in effect, been answered in the affirmative.
But the judge, besides dissolving the injunction, made an order to dismiss the bill; which he had no right to do in vacation. The Code, ch. 179, §14, declares that where an injunction is wholly dissolved, the bill shall stand dismissed with costs, unless sufficient cause be shown against such dismission, when the case is in a circuit court, at the next term," & c. " The clerks of said courts shall enter such dismission on the last day of said terms."
There are two questions connected with this case, which we have deemed it unnecessary to decide, and upon which we do not wish to be understood as intimating any opinion; and they are, 1st, whether the plaintiff in an injunction suit has not a right of election to bring it in the place in which the judgment was rendered or the proceeding is apprehended which is sought to be injoined, or to bring it in the place where the defendants or some of them reside; and, 2dly, if he be bound to bring it in the former, and it be brought in the latter, by mistake of the judge awarding the injunction in directing his order to the clerk of the latter instead of the former, or otherwise; whether it be necessary to dismiss the bill, on motion being made for that purpose; or whether, instead of dismissing it, the suit may not be removed into the proper court, by order of the court in which it is improperly brought. These questions may both be res adjudicata. But whether so or not, we mean not now, because it is unnecessary, to decide.
Therefore, so much of the said order as purports to dismiss the bill is void and must be disregarded; and we are of opinion that the said order ought to be amended in that respect, and as amended affirmed, and the cause remanded to the said Circuit court of the county of Henrico for further proceedings to be had therein as aforesaid.
DECREE AMENDED AND AFFIRMED.