Bloomfield v. Snowden, 2 Paige Ch. 355

Bloomfield v. Snowden

2 Paige Ch. 355 | New York Court of Chancery | 1831

The Chancellor.

If the decision of the vice chancellor is incorrect, the defendants, or their assignees who have taken the notes with notice of all the equities between the parties, shou](j not be permitted to go on at law and collect the amount before the case can be disposed of on the appeal. But they allege that Bloomfield threatens to put his property out of his hands if they proceed against him on the notes; and that they have offered to deliver up to him the notes on his assigning over the property of the company, for the stock of which the notes were given. They also object that they are not parties to this suit; that, as the case is now situated, no decree can be made therein which will protect their rights ; and that the prosecution of the suits at law, is the only means they have in their power to compel the complainant to do equity. Under such a state of facts, I should be doing injustice to these assignees to stay their proceedings at law, even if I have the power to do so on this petition, when they are not parties to the suit. The application for an injunction on the petition must therefore be refused. But as the whole cause is now before the chancellor on the appeal, and all further proceedings in the cause may be carried on before him, the complainant must have leave to file a supplemental bill» setting forth the substance of what is charged in his petition) and such other matters as he may be advised to insert therein, and making all necessary parties. And if he elects to file such supplemental bill, he may apply thereon to the chancellor for an injunction, or for other relief, on such terms and conditions as he may think proper to propose.

On a subsequent day, the complainant having filed a supplemental bill, he made an ex parte application for an injunction to restrain the defendants therein from proceeding at law.

The Chancellor

said it was not the intention of the court to allow the complainant to apply for an injunction on the supplemental bill, without notice of the application to the adverse party. That the new defendants were made parties on the ground that they had succeeded to the rights of Snow-*357den since the commencement of the suit; and that due notice of the application for the injunction must therefore be served on the solicitor who represented their interest in this controversy. The chancellor also observed that it was not the practice of the court to grant an injunction affecting the rights of a party who has appeared, without giving him an opportunity to be heard on such application. That if there is no necessity for the immediate interference of the court, the complainant should serve a copy of his supplemental bill, or petition for an injunction, with a regular notice of the application upon the solicitor of the parties who have appeared in the cause, and who are to be affected by the injunction. If a temporary injunction is necessary in the mean time to prevent serious loss or injury to the complainant, and a sufficient ground is laid therefor, the court directs the petition or supplemental bill to be filed, and grants an order for the defendant to show cause at the next motion day, or other convenient time, why the injunction as prayed for should not be granted; and^in the mean time a temporary injunction is issued to prevent the anticipated injury. In such cases the temporary injunction falls, of course, if the complainant neglects to serve the papers on the adverse party, and to bring on the application at the time fixed by the court, or as soon thereafter as he can be heard.

An order to show cause was therefore granted in this case, and a temporary injunction was allowed to stay the executions at law in the mean time; but the court refused to restrain the defendants from proceeding to trial and judgment.