McCreery v. Brown

42 Cal. 457 | Cal. | 1871

By the Court, Sprague, J.:

The material allegations of the complaint constituting the gravamen of plaintiff’s claim to equitable relief are specifically denied by the answer, and the special denials of collusion and fraud are supported by the affidavits of Williams and Wheaton, filed with the answer. Under the general rule that “ when all the equities of the bill are denied by the answer the injunction should be dissolved,” the injunction should have been dissolved, unless the circumstances of the case, as disclosed by the pleadings, be such as to justify the Court in the exercise of a sound discretion in continuing the injunction until the hearing upon the merits.

There are circumstances disclosed by the pleadings in this case, independent of the direct issues made thereby, which might well have influenced the Judge, in the exercise of a sound discretion, to continue the restraining order until the hearing upon the merits of the case. (Godey v. Godey, 39 Cal. 166, 167.)

Order affirmed.