7 How. Pr. 140 | N.Y. Sup. Ct. | 1851
This motion must be granted. The order was improperly made. The judge who tried the cause having made his decision, and the same having been filed, it could not be altered by him. It was like a verdict of a jury. If erroneous or defective it could only be corrected or amended upon application to the court. It had passed beyond the control of the judge. Judgment having been perfected upon the decision, the suit was thereby terminated, subject only to be reinstated by an appellate court. The complaint being dismissed, the injunction, ipso facto, fell with it (1 Barb. Ch. Pr. 644). Nor would an appeal restore the injunction. The complaint having been dismissed and the injunction thereby discharged, it could only be restored by a eversal of the judgment. The act sought to be restrained can only be prevented by an appeal to the original power of the court over the parties before it. Hart vs. The Mayor of Albany (3 Paige, 381), furnishes an example of the exercise of such original power. In that case, the chancellor had made an order dissolving the injunction. From that order an appeal to the court for the correction of errors had been taken. While the appeal was pending, the complainants presented a petition to the chancellor, asking that the defendants might be restrained from doing the act which had been prohibited by the injunction, until the decision of the appellate court. Upon the facts presented, the chancellor made an order to that effect. “ The only reasonable ground of objection to such a proceeding” says the chancellor, “ is, that it seems inconsistent for the court to make an order to restrain a party from proceeding, after it has, upon a full hearing of both parties, decided that he has both a legal and equitable right to proceed.”
