Corey v. Voorhies

2 N.J. Eq. 5 | New York Court of Chancery | 1838

The Chancellor.

R. Yan Arsdale, in behalf of the defendants, moved to dissolve the injunction issued in this cause, on three grounds : — 1. Because the defendants had never been served with a -subpoena : 2. Because the injunction was served -■out of this state and in the state of New-York; and 3. Because .-the original injunction was not shown to the party at the time of ■the service.

As to the first ground: — According to the English practice, a .subpoena is required in many cases to be served before the application for an injunction- can be made, and in fact will not then ■he allowed until answer or default in the party in not appearing. In all such cases, it becomes very important to know that the subpoena has been issued and served. Under our practice injunctions are issued on filing the bill, and before issuing a subpoena or waiting for an answer. The only requirement which the .court can make on the party obtaining the injunction, is, that he .use due diligence in expediting his cause. Nothing could work greater injustice, than to allow a party to obtain an injunction, ■and then let his cause sleep. It was accordingly decided by .chancellor Williamson, at April term, 1829, (see a reference to this case in Halsted’s Digest, 178,) that a party must take out ■a subpoena on taking out an injunction, and that he would dissolve an injunction if that practice was not adopted. The same tule would apply to any other case of gross neglect on the part of the complainant to progress in his suit.

iu the present case, it is agreed by counsel on the argument, that the bill was filed on the 26th day of August, a subpoena taken out returnable to the next stated term of the court, and returned by the sheriff of the county of Essex that the defendants could not be found in his county to be served with process, with his affidavit in the usual form of their being absent defendants residing in the stale of New-York; and that an order of publication was made at the term to which the subpoena was returned. What could the complainant have done more ?

The defendants have severally made affidavit that they have not been served with a subpoena; and one of them, that since filing the bill he has repeatedly been in the county of Essex. These affidavits do not vary the case. The return of the sheriff should be conclusive for the present purpose, unless some collusion is shown to exist between the sheriff and the complainant or his solicitor, which is not pretended. Besides, all that the defendants swear to may he perfectly true, and the sheriff never have seen the defendants in his county or been able to make personal service on them or either of them. I cannot, therefore, as the complainant seems to have done all in his power to progress with his suit, according to the practice of the court, sustain the motion on the ground that the subpoena w?as not served.

As to the second and third reasons, they cannot lay the foundation for dissolving an injunction. If the injunction has been served out of the jurisdiction of the court, and in a manner not conformable to the settled practice, that may all be very proper to urge on a motion for an attachment for a contempt in case of disobedience to its requirements, but cannot be a reason for setting aside the injunction and order. There are cases where the party will be considered in contempt when the injunction was not regularly served, provided they were present in court at the time it was ordered, or had other certain knowledge that the same had been ordered. The motion therefore must be denied...