Hyre v. Hoover

3 W. Va. 11 | W. Va. | 1868

Maxwell, J.

.The appellant applied to the judge of the cii’cuit court of Pendleton county, in vacation, for and obtained ah order for an injunction to restrain the defendant Jones, as trustee, from selling certain lands which had been conveyed by Hyre to the said trustee to secure to Hoover the payment of a certain debt specified in the trust. The order for the injunction is without date, but the endorsement of the clerk on the bill, showing that the bond was executed, is dated May 24th, .1866. No further proceeding seems to have been had in the matter until May rules, in the year ,1867, when the complainant amended his bill, and made Hoover and Jones defendants to the bill, neither of whom had been parties before that time. At the same rules at which the bill was so amended, process was awarded against the defendants to answer the bill, returnable to the then next rules, at which time the said process was returned executed on the defendants. The defendants failed to appear and the complainant’s bill was taken for confessed unless the defendants should appear and file their answer at the then next rules. Before the expiration of the rule on the defendants to answer, the circuit court' of Pendleton county was in session, and while the case was at rules the defendants appeared in the said court and filed their demur-. rer to the said bill and asked that the injunction be dissolved, which was done. Prom the order dissolving the injunction the complainant Hyre has appealed to this court.

The first cause assigned as error is that it was improper for the court to entertain a demurrer to the bill and to dissolve the injunction, while the case was at rules, without notice to the complainant.

In this case it appears from the order dissolving the injunction that the complainant, although it does not appear that he had notice, appeared by his counsel and contested the case on the demurrer, thus in effect waiving notice, if any was necessary. ' .

The second cause of error complained of is, that upon the demurrer the facts in the bill were admitted and that there were sufficient facts charged in the bill for equitable relief, therefore it was error to' dismiss the bill. It seems to me that there is no ground for equitable relief charged in the bill, and that the injunction was therefore improvidently awarded and might have been dissolved on motion without answer, and it cannot be error that it was dissolved on demurrer. Slack vs. Wood, 9 Grat., 40.

The third cause assigned as error is that, the order of dissolution was erroneous in this, that the court of equity did not, after having taken jurisdiction of the cause, have the trust executed, if, and when it should be proper to do so, under its own supervision and by its own commissioner. In tbis case tbe appellant bad executed tbe deed of trust for tbe purposes specified in it, with power to tbe trustee to sell tbe land, and tbe facts charged' in tbe bill do not show any reason why a court of equity should interpose for any purpose whatever. If there was any reason why the trustee should be restrained from selling then there might be some reason why the court should have executed the trust by its commissioner or under its order, but not necessarily so. If it was proper for the court to execute the trust in this ease, under the facts charged, there could be no case in which it could not be called on to execute the trust.

I think the court below committed no error in dissolving 'the injunction, and that the order complained of should be affirmed with costs to the appellees, and damages to the ap-pellee Hoover, and that the cause should be remanded to the court below for further proceedings to be had therein, with instructions to dismiss the complainant’s bill with costs, if the case appear in the court below substantially as it appears in the record here.

Order op dissolution confirmed.