158 A. 441 | N.J. | 1932
The present appeal, which may be characterized as secondary in its nature, brings up an order made in the cause on June 10th, 1930, when the original appeal, from an order dated November 18th, 1929, directing the delivery of certain certificates of stock, was pending in this court and undecided. That earlier appeal was decided October 20th, 1930, by an affirmance on the opinion of the court of chancery, reported in
The point taken by the appellant on this appeal, and as we conclude, well taken, is that after the cause had been removed from the court of chancery to this court by an appeal properly taken, the lower court was without jurisdiction to deal with the case in such wise as to impair or alter the subject-matter of the appeal. The particular question involved relates to the power of the court of chancery to enforce obedience to an injunction after appeal from an order awarding such injunction. In dealing with that question as presented in this case it is important at this point to set down with precision the character of the injunctive relief that was awarded.
The facts are fully stated in the opinion of the vice-chancellor, ubi supra, and need not be here repeated. The injunctive order of November 18th, 1929, requires "that the defendant Bloomfield Bank and Trust Company forthwith deliver to each of the complainants" (naming them) "or Carlyle Garrison, their solicitor, all certificates of capital stock in its possession or under its control, of Interstate Hosiery Mills, Incorporated, a corporation, which said certificates of stock are drawn in favor of said complainants respectively." Section 10 of the Chancery act of 1915 (P. *548 L. p. 184 — at p. 186), provides that "a decree or order of injunction shall have the effect of a writ of injunction, and no writ of injunction shall issue unless specially directed." That statute has not been before this court for consideration, but perhaps is tacitly recognized by rule 210 of the court of chancery, beginning: "The writ of injunction, when ordered," c.; and the view expressed by the late Vice-Chancellor Bentley, inForstmann Hoffman Co. v. United Front Committee, c.,
Accepting that view for present purposes, we have before us an order which is entitled on its face as an "order and injunction;" which is so described in the later order now under appeal, and which probably should be regarded as in effect a mandatory injunction to deliver the stock. It is not a preventive injunction anticipatory of some threatened wrong. It would have been such if, for example, it had forbidden the trust company to do anything with the stock until further order of the court: but what it does is to require positive action involving a change of existing conditions, and this, as will be seen, is vitally important to the present appeal.
The injunctive order was appealed, as has been stated, and the trust company did nothing by way of obeying it. The original appeal not having been decided at the May, 1930, term of this court, complainants applied to the court of chancery to hold the trust company in contempt for not delivering the stock. The vice-chancellor did not so adjudge, but took the middle course of ordering a bond in $10,000 conditions to perform the decree if affirmed, and in default of giving such bond, then to deliver the stock as directed by the "order and injunction" and notwithstanding the appeal.
In dealing with this subject of appeal in injunction cases, one naturally turns first to the celebrated case of PennsylvaniaRailroad Co. v. National Docks, c., Railway Co.,
It was intimated by the late Chancellor Magie, in Laird v.Atlantic Coast Sanitary Co.,
It is unnecessary to notice with particularity various decisions in the court of chancery bearing on this subject, as for example, Delaware, Lackawanna and Western Railroad Co. v.Breckenridge,
In the recent case of Roseberg v. American Hotel and GardenCo.,
The fundamental thought underlying our decisions on this subject is the preservation of a status quo on which the determination of the appeal may act effectively. So, where for example, there is a preventive injunction, which in the nature of things contemplates the continuance of an existing status, that injunction stands although appealed, and the court of chancery is by the very appeal ousted of jurisdiction to interfere with it while the appeal persists. On the contrary, where the decretal order or injunction, by whatever name known, calls for an alteration in the status of the parties as previously existing, and an appeal is taken, the effect of the appeal is to suspend the operation of such order or injunction until, and subject to, the determination of the appeal. This would obviously be the result of appealing from a decree of specific performance; and between such a decree and that affirmed by us in our former decision in this cause, there is no essential difference.
As a corollary from what has been noted above, it follows that an injunction forbidding disturbance of an existing status must be obeyed pending appeal, and the court of chancery may and should enforce it but cannot modify or annul it; and that an injunction or order requiring a change in the existing status isipso facto suspended by appeal, need not be performed while appeal is pending, and contempt may not be predicated on failure to perform it in that event.
Illustrative of these views is the recent decision of Vice-Chancellor Fielder in Schreiber v. Drosness,
In the case at bar the order requiring security, or in the alternative the delivery of the stock, made after the appeal was perfected, was beyond the jurisdiction of the court of chancery and consequently erroneous, for the reasons we have stated. It will therefore be reversed.
It is true that in view of our affirmance of the original order to deliver the stock, the question whether the second order was justified becomes in a sense academic; but the subject is of paramount importance, and that fact justifies, if indeed it does not require, the foregoing expression of our views.
For affirmance — None.
For reversal — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, KERNEY, JJ. 15. *553