3 Paige Ch. 381 | New York Court of Chancery | 1831
It is supposed by the complainants’ counsel that the appeal from an order dissolving an injunction has, under the provisions of the revised statutes, the effect of nullifying the order pending the appeal, so as to prevent the dissolution of the injunction, and to deprive the defendants of the right to go on with their proceedings under the law of the corporation, or to do any act contrary to the prohibition contained in the injunction. But if they should be wrong in their construction of the statute, the complainants then ask the court to exercise a judicial discretion, under the peculiar circumstances of this case ; and that they may have an order, in the nature of a temporary injunction, to stay the proceedings of the defendants pending the appeal, so as to give the appellants the benefit of the decision of the court for the correction of errors, if it should be in their favor.
Previous to the passing of 'the revised statutes it had been decided, both in the supreme court and in this court, that an appeal from an order dissolving an injunction could not of itself affect the validity of the order, or revive the process pending the appeal, so as to prevent the respondent from proceeding in the same manner as if no injunction had ever been granted. (Hoyt v. Gelson & Schenck, 13 John. Rep. 139. Wood v. Dwight, 7 John. Ch. Rep. 295.) But it is supposed that the eighty-ninth section of that article of the revised statutes which relates to' appeals from the court of chancery, &c. (2 R. S. 607,) has altered the law in this respect. That it has placed it in the power of a party who has obtained a preliminary injunction by an ex parte application to an officer out of court, to continue that injunction in full force, by simply appealing from an order of the court directing its dissolution. If such should be found to be the trueconstruction of the statute, it would become absolutely necessary, to prevent the greatest injustice to parties, to change the practice of this court in relation to the granting of injunctions on an ex parte application to the court, or to an officer thereof. But according to the construction of this section of the statute as contended for by the counsel in another case that is now pending before me, even a change in the practice of the court could not remedy the evil. For it is there insisted that an appeal from
To understand the meaning of the several provisions of the revised statutes relative to the stay of proceedings pending an appeal, it may be necessary to inquire what was the former law and practice of the courts on this subject, and what were the evils intended to be remedied by these legislative provisions. It will be recollected by those who have had occasion to look into the history of the jurisdiction of the house of lords in England, relative to appeals from the court of chancery, that their- jurisdiction was for a long time contested, not only by the house of commons, but by several distinguished English judges. And the learned Chief Justice Hale wrote a very, elaborate treatise for the purpose of showing that the lords could not rightfully exercise such a jurisdiction. In this struggle to obtain or preserve jurisdiction in cases of appeals, it will be found, on examination, that very little regard was paid to the rights of suitors, or of their coupsel; some of whom were heavily amerced, and even imprisoned, for questioning the jurisdiction of the lords, or for refusing to appear as counsel in that court. During this contest, it was a matter of course that the lords, for the purpose of sustaining the jurisdiction which they claimed, should prohibit the respondent from taking any steps in the cause, in the court of chancery, pending the appeal; whatever injury he might sustain by the delay. Hence it became the law of the appellate court, that the mere presenting an appeal to the house of lords, suspended all proceedings whatever in the court below. And so far was this principle carried, that as late as 1772 it was supposed that an appeal had the effect of totally suspending the jurisdiction of the lord chancellor as to the whole suit, until the decision of the lords on the appeal. But in the case of Lord Pomfret v. Smith,