Horn v. Perry

11 W. Va. 694 | W. Va. | 1877

Moore, Judge*,

delivered the opinion of the court.

It was not error for the judge of the circuit court, sitting in chambers in the city of Parkersburg, in the county of Wood, to hear and determine a motion to dissolve an order of injunction in a chancery cause pending in the circuit court of Bitchie county, without the said cause . having first been removed to said county of Wood by an order, made in term time by the circuit court of Bitchie county, those two counties being in the same judicial circuit. Hayzlett v. Jordan McMillan, &c., 11 W. Va., has settled that question.

It is assigned by the appellant as error: “for the judge to hear and determine the motion to' dissolve the injunction under the circumstances,' because the notice of said motion had not been legally and duly served upon the complainant, being served on the 4th day of July, which has been made by statute a legal holiday.” The 31st section of chapter 123 Acts 1872-3, page 403, declares, that in contracts with teachers, it shall be understood that the school is not to be kept in operation for ordinary instruction on the fourth day of July; and section 20 chapter 215 declares, that as to any bank in this State other than a national bank, the 4th day of July shall be considered a holiday, and notes, bills or other evidences of debt, maturing or falling due on that day, shall be due and payable on the preceding day. I know of no law in this State that renders the 4th day of July, so far as the service of legal process, dies non juridicus; and in this instance it was not illegal to serve the notice on that day.

As to the third assignment of error, which is the overruling of the appellant’s motion to continue the motion to dissolve the injunction": that motion was based on ' appellant’s affidavit to the effect that he was served with the notice of the intended motion to dissolve on the 12th of July; that for nearly three weeks previous to said 12th of July he had been absent from the State, and knew nothing of said motion; that neither affiant nor his counsel were served with a copy of the answer, which was not filed until July rules in Ritchie county, and had no opportunity to know its contents until the 15th of July; that since the institution of the suit on June 4, 1874 his counsel had been continually in attendance on the circuit court of Wood county up to the 14th of July; and it had been impossible, owing to his absence and the employment of his counsel, to take depositions of important witnesses to sustain the allegations of his bill; that he verily believed, if an opportunitity was offered him by postponement of the hearing of the motion, he could make good the material facts of his bill; that he particularly desired to take the deposition of-Snod-grass, then residing in Maryland, who was cognizant of many of the facts stated in his bill; and that affiant had not had time to take said deposition. The judge, in overruling the appellant’s motion to continue, stated in the order his reasons therefor as follows: “ It appearing that the said injunction was allowed on the 4th day of June 1874, and that he had had ample time from that time until the present hearing to have taken testimony to prove the allegations of his bill, had he chosen so to do; and that the facts set up in his said affidavit do not show a sufficient excuse for not taking said testimony, and for the reason that before the money could be made upon any execution which may be issued upon the judgment in the bill mentioned, the plaintiff would have ample time to take his testimony, and move to reinstate said injunction.”

In the case of Radford’s ex’ors v. Innes’s ex’rx, 1 H. & M. 8, upon a similar motion, it was alleged, that at the next term complainants “could be prepared to show that the allegations in the bill were true, by evidence which they could procure from the state of Ohio, but had' hitherto been prevented from obtaining, by the great distance of the residence of the complainants from that State, and the difficulty of having such subjects, as taking testimony so far off, attended to; that the answer had been lately filed, and that, until then, the complainants were not informed of the points intended to be controverted.” The court held : “The reasons assigned for a continuance are not sufficient to induce the court to depart from the general rule: and that is, never to continue a motion for the dissolution of an injunction, unless from some very great necessity, because the court is always open to grant, and, of course, to reinstate an injunction, whenever it shall appear proper to do so, and because too the plaintiff should always be ready to prove his bill.” The court refused to grant the continuance, and dissolved the injunction. See also opinion by Haymond, Judge, in Arbuckle v. McClanahan, 6 W. Va. 107, 108, citing the foregoing case. Upon the principles promulgated by those two cases, I am clearly of opinion that in this case the cireuit judge did right in refusing to grant the continuance, and for the reasons assigned by him, even if there had not been other reasons requiring the dissolution.

Perry having answered the plaintiff's bill denying the material allegations thereof, the circuit judge, upon the principles laid down in the two cases just cited, and in Hayzlett v. McMillan, cited before, even if there were not other reasons, would have been bound to have dissolved the injunction; but there were also other reasons why the injunction should have been dissolved, especially after the filing of the answer by Perry, making exhibit of the pleadings and proceedings in the former suit of Horn v. Perry, and the record of said suit which was also introduced in evidence upon the motion of Horn at the hearing of the motion to dissolve the injunction. The bill does not contain sufficient equity to give tbe court j urisdiction; and tbe 'injunction should have been dissolved for that reason. But there is another grave reason why the injunction should have been dissolved. It is in disguise the same cause as the old case of Horn v. Perry which was ad-ju licated by this Court upon appeal and supersedeas in October 1872, when it dissolved the injunction and dismissed complainant's bill for the want of equity, and because “it showed upon its face inexcusable negligence and laches on his partin not attending to his interests in the case of Perry v. Horn, the decree in which case he attempted to have perpetually enjoined by that bill, and also because his evidence did not sustain his allegation of surprise and fraud.” Hence it is an attempt to override the mandate of this Court in the former case of Horn v. Perry, and open up the matters then decided, to avail himself of such matters of defense as had been solemnly adjudicated, and which he was barred from setting up, by his negligence and laches in the case of Perry v. Horn.

This appears upon the face of the record in this cause and the matters here in controversy are res judicata.

I am therefore of opinion that’ the order dissolving the injunction, appealed from, should be affirmed with costs and $30 damages.

Green, PRESIDENT and Haymond, Judge, concurred.

Order Affirmed.