68 Vt. 23 | Vt. | 1895
The court below allowed to the defendants as injunction damages a sum paid to counsel for services on a motion to dissolve a temporary injunction granted in the case. The injunction was not dissolved, but was modified by agreement of the parties. The orator claimed a right to
In Andrews v. The Glenville Woolen Co. 50 N. Y. 282, in which a permanent injunction was sought, a motion to dissolve was denied, because it involved an inquiry into the merits of the case, which the court thought more proper to be made at the hearing. The defendant was thereupon compelled to go to trial, to obtain a decision that the injunction was improperly granted, in order to recover the damages he had sustained in endeavoring to procure a dissolution, and it was held that a- counsel fee for the trial of the suit was allowable. But that case differs from this. Here was a joro forma decree made without hearing, which precludes the idea of judicial action based on a consideration of the case, and does not even disqualify from sitting in banc. It is not to be supposed that either party asked for a hearing and was denied, as it was the duty of the court to hear if asked, but it is rather to be inferred that the parties consented-to, and were satisfied with, that disposition of the case. If the court had dismissed the bill on hearing, as it should have done, in view of the final result, it does not follow that it would have continued the injunction as it did. And if the parties had not agreed to a modification of the injunction, but had left the motion to dissolve to stand for
Let theré be no costs in this court, as both parties appealed and neither has prevailed.
Affirmed and remanded.