7 N.J. Eq. 629 | N.J. | 1848
Lead Opinion
Mr. Doughty filed his bill in the Court of Chancery, setting forth such matters which the Chancellor deemed sufficient to authorize him to enjoin the defendants from
The Chancellor having granted a stay of proceedings until the coming in of the appeal, we are now asked to extend that order to the hearing; and the first question raised, is as to the power of the court to grant such an order; it being, .as alleged, an exercise of original jurisdiction, and we but an appellate tribunal. I had supposed that the question of power had been considered settled in this court, as well from its various exercises as from the discussion and opinions delivered in the Chegary case. The right to grant such an order must exist in the very nature of things. To deny it is to deny the right of appeal in the case; for if we have no power to protect the subject matter of the appeal, then is the right nugatory, it would be worse than useless for us to hear the merits of the appeal argued, and to decide thereon three or six months after the evil complained of has been suffered to be committed, and has become irremediable or the injury irreparable. Nor is the granting a temporary order at this time any more an exercise of original jurisdiction than the reversing, at the hearing, of the order of the Chancellor dissolving the injunction ; for that would be in fact granting a perpetual injunction. If we have that power, as of course we must have, then we must also have the power to protect the rights of the parties within the jurisdiction of the court until the cause can be heard. And as a mere question of power or right of jurisdiction, I see no distinction between this case and the ordinary case of a stay of execution or proceedings in the court below. Both are dependant on precisely the same principles; but in the exercise of the power by this court, there may be much more difficulty and delicacy in the one than in the other. Why is it that we grant, even as a matter of course, a stay of proceedings in the court below I Why, simply to preserve our own jurisdiction of the case, and to protect the rights of the
I am aware that most of che cases are those of mere ordinary stay of proceedings; hut that arises in the first place from such being frequent, whilst such as the present case seldom occur. And in tho next place, because the courts and the authors on the subject haye never made and never could make any distinction in principle between one set of cases and another. They lay down the principles and tho general practice, which apply to all casos, including, of course, those like the present. If injunction cases formed an exception to the general rulo, I think some case or some author would have pointed it out, or some Court have refused the order to stay upon the ground of defective power in the court; but I find no such distinction or refusal. The or
Of the right to grant the rule I think there can be no doubt. As to the exercise of it in the present instance there is much more doubt. It must rest with the sound discretion of the court. Never to issue it, would destroy the right of appeal in such cases; always to grant it as of course, would be oppressive and require some modification of the power of granting injunctions, and render the dissolving an injunction and appeal equivalent to a continuation of the injunction. We must look not to the merits of the appeal so much as the circumstances of the case and the situation of the property. If the complainant is right in his positions and we to determine on the the hearing of the appeal, then there is no power in the defendant to construct
In this opinion McCarter, Judge, concurred.
Concurrence Opinion
By the ancient practice it was held that an appeal from a Court of Equity stayed all further proceedings in the court below. But by the modern English practice, the appeal does not stay proceedings, but an order for that purpose must be obtained either in the Court of Chancery or in the House of Lords. 15 Vesey, 182, Huguenin v. Basely; 16 Vesey, 216, Willan v. Willan; 17 Vesey, 380, Monkhouse v. The Corporation of Bedford; Eden on Inj. 229.
The hotter practice seems to be to make the application to the House of Lords, for even the order staying proceedings may be appealed from. 15 Vesey, 182; Lewes v. Morgan, 5 Price, 468.
By our practice, an appeal from an interlocutory decree does not stay proceedings except by an order of this court or the Court of Chancery for that purpose. If an appeal from a final decree be filed in ten days, it prevents issuing process on the decree. Rules of the Court of Chancery, rule XX.
Prior to the Revised Statutes in New York, the appeal ipso facto stayed proceedings on the point appealed from. An order for leave to proceed was necessary. Green v. Winter, 1 J. Chan. 81; 2 Hoffman’s Chan. Pr. 31; Messonier v. Kauman, 3 John. Chan. R. 66.
The injunction being dissolved, the appeal cannot revive the process or give it force. It cannot be revived but by a new
It is, in effect, the granting of a new injunction. It is said, that this is an original exercise of judicial power; and unquestionably it is so. It is thereupon objected that this is a mere appellate tribunal, and caPnot exercise such power. The consequence does not follow. It may not exercise original power in acquiring jurisdiction over the cause. But that jurisdiction once regularly obtained, this court may exercise original jurisdiction over the parties, especially when the proceeding is in rem, and the object of the order to maintain unchanged, as far as' practicable, the status or condition of the subject matter of the controversy during the pendency of the suit. It is on the same principle upon which a court of common law, in an action of ejectment or dower will make an order upon the party in possession, restraining the commission of waste. And a Court of Equity, prior to the hearing or argument, will, upon the same principle, grant a temporary injunction until the case can be heard. It is an inherent power in all superior tribunals, essential to the attainment of the object of litigation and the ends of justice. I am of opinion, therefore, that this court must of necessity have the power to make the order applied for.
The power existing, is this a proper case for its exercise 1 The question presented is not whether the appellate court will stay proceedings in the court below, upon the point appealed from, pending the appeal; but it is, whether upon an appeal from a decree of the Chancellor denying or dissolving an injunction, the appellate court will grant a temporary injunction until the final hearing of the appeal. We are upon this point entirely without precedent except in our own State. No precedent cambe found either in the House of Lords or in the Court of Errors' of the State of New York, whose practice is strongly analagous to our own.
The first case fa this court, of which I have any knowledge, is that of Suydam .v, New Jersey Railroad Company, at January term, 1849. That order, it is well known, was obtained by surprise, without notice, in the absence of the opposing coun
In the caso of Chetwood v. Brittain, at May term, 1843, an order was granted in express terms staying proceedings at law. This is stated in the order to ho by consent.
Since the present organization of the court, at July term, 1845, a similar rule was granted in Chegary v. Scofield. This rule, too, was obtained by surprise, without argument, in the absence of opposing counsel; and at the succeeding term was set aside by a decided vote of the court. Unfortunately the precise ground of setting aside the order does not appear. It may have been, and probably was, upon the. ground that it wont beyond the prayer of the original bill, and was made to operate upon persons not parties to the record.
It is worthy of notice that both in Chetwood v. Brittain and in Chegary v. Scofield, the injunction was merely auxiliary to the main design of the suit. The object of the bill in one case was to avoid a bond; in the other, a Sheriff’s sale. The injunction in the former case restrained a suit at law upon the bond ; in the latter, the delivery of the Sheriff’s deed. In both cases the order restraining proceedings was made without the least reference to the merits of the case. The original design of tho order wag merely to restrain proceedings until the case could he heard. In neither case were the merits necessarily involved, nor could the order operate to the serious detriment of tho party enjoined.
But in the present instance the whole object of the bill is the Injunction. The sole inquiry is, should the injunction issue 1 .The Chancellor, upon a full consideration, has decided that the Injunction should not issue. This court are now asked, not to restrain proceedings in tho court below, hut to restrain the Company from proceeding under their charter. The power of this court is invoked to arrest the construction of tho road; to do, what upon maturo consideration the Chancellor has decided ought not to he done. It is to reverse, at least temporarily, the
The granting of this order necessarily involves the merits o f the whole controversy. The argument upon the motion has necessarily and unavoidably turned upon the merits. The cause has been argued precisely as if we were now upon the hearing of the appeal. I think the merits ought not to be heard upon this summary motion. The practice will lead unavoidably either to a decision upon a partial hearing, or to a prejudging of the case upon its merits, in contravention of 'the rules and practice of the court.
It is a power which, in all cases where the merits are thus necessarily involved, had better be left to the discretion of the Chancellor. He may properly exercise it, and with much more safety than this court are likely to do. He is familiar with the case, and may, without the necessity of a further argument, if he thinks the case demands it, grant a temporary injunction until the cause can be heard in this court.
That, course was adopted in the case of Hart v. The Mayor of Albany, 3 Paige, 386. The bill was there filed for the purpose of restraining the corporation of Albany from removing from-the Albany Basin a floating storehouse, which the complainant had erected and moored therein, against the ordinance of the corporation. On Sling the bill, an ex parte order was made for an injunction restraining the defendants from carrying the provision of the ordinance o£ the corporation into effect. On the coming in of the answer the injunction was dissolved. From
The exercise of this power of the Chancellor may always preserve, pendente lite, the just rights of the parties litigant. There is no necessity for its exercise by this court.
The opinion of the Chancellor in Monkhouse v. The Corporation of Bedford, 17 Vesey, 380, shows that the power even in that court will be exercised with great caution, and only when it can be done consistently with the rights of the party in whose favor the decree is made. The exercise of the power by this court in cases circumstanced like that now under consideration, will unavoidably be productive of serious evils without any corresponding benefit. It would bo far better, and more conducive to the ends of justice, to permit the appellant in all injunction bills, where the injunction is denied by the Chancellor, to bring on the final hearing of the cause immediately upon the coming in of the appeal.
The motion must be denied.
In this opinion Sinnickson, Porter, Schenck and Speer, Judges, and Carpenter, Justice, concurred.
Motion denied.