77 F. 932 | 7th Cir. | 1897
The brief of the appellants has been prepared with notable disregard of the requirements of our rule 2á (11 C. CV. A. cx.; 47 Fed. xi.). The so-called “statement of the case” is burdened and confused with matter of argument, and, in the order and form required, there is no specification of the error relied upon. See Vider v. O’Brien, 18 U. S. App. 711, 10 C. C. A. 385, and 62 Fed. 326.
The appeal is from an order dissolving a temporary injunction. The suit was brought by the appellants, Bradshaw and Henry, citizens of Illinois, against the Miners’ Bank, a corporation of Missouri, the Illinois & Missouri Lead & Zinc Company, a corporation of Illinois, and Corwin O. Thompson, a citizen of Illinois, appellees. The substance of the bill, in so far as it need be stated, is that the appellants purchased certain property of the lead and zinc company, for which they executed their promissory notes, in the aggregate amount of §4,050, to the Miners’ Bank, which, it is averred, has no interest of its own in the notes, but was made payee at the request and solely for the benefit of the lead and zinc company; that at the same time Thompson executed to the Miners’ Bank a separate writing whereby he guarantied the payment of the notes; that on that guaranty the Miners’ Bank had recovered judgment in the court below against Thompson for the full amount of the notes, and. upon a creditors’ bill in the same court, showing execution upon the judgment returned nulla bona, had procured the appointment of a receiver of Thompson’s property; that, by reason of false representations of the character and condition of the property for which the notes were given, the appellants have a legal defense to any action thereon; that, pending the suit upon the guaranty, and after plea of the general issue to the declaration, they informed Thompson and Ms attorney of the facts constituting their defense, and of the evidence obtainable to establish it, and requested and offered to employ an attorney to represent their interests in the suit, and to assist in making the defense; that the offer was declined; that Thompson’s attorney neglected to set up the defense by special plea, and, when the cause was reached for trial, neither Thompson nor his attorney appeared in court, and a verdict was taken and the judgment rendered upon which the subsequent proceedings mentioned were had. The concluding averment is that, notwithstanding the negligence of Thompson, through his attorney, in failing to prepare for
The case, it is quite clear, is not one which calls for the interference of this court. Whether a temporary injunction shall be granted or refused, or, having been granted, shall be dissolved or modified, is always a matter of sound discretion, concerning which the decision of the circuit court will not be reversed on appeal, unless error and probablé injury are manifest. Standard Elevator Co.
If the answer were left out of consideration, our conclusion would not he different. The bill proceeds on the assumption that, in the suit at law upon the guaranty, Thompson might and should have availed himself of the defense which the appellants disclosed to him and offered to assist in maintaining. Whether that theory is true we do not consider. The question may not be free from doubt. See Brandt, Stir. § 236, and notes and cases cited. If (lie assumption be true, it necessarily follows that Thompson must be considered as having submitted voluntarily to the judgment rendered against him, and that any payment effected through proceedings upon the judgment. should he deemed to be voluntary, and to afford no ground for recourse upon the appellants; and, that being so, their suit rests only upon sentimental grounds. The appeal is dismissed.