O'Conner v. Starke

59 Miss. 481 | Miss. | 1882

Chalmers, C. J.,

delivered the opinion of the court.

A motion was made to dissolve an injunction in vacation upon bill and answer. After notice of this motion had been given, exceptions were filed to the answer, and by the clerk referred to a master. When the motion to dissolve came on to be heard before the Chancellor, he refused to consider it, because the exceptions were still pending before the master. He refused also to allow the answer to be read with a view of determining whether the exceptions were well taken, or whether they affected in any way the merits of the motion to dissolve. He based his action on § 1915 of the Code of 1880, which is in these words : “ A motion to dissolve an injunction upon bill and answer shall not be entertained, pending exceptions to the answer for insufficiency, unless the Chancellor shall be of the opinion that the matters of exception would not affect the motion, even if they are well taken.”

By the English practice a defendant could not move to dissolve an injunction after exceptions filed, until the exceptions had been disposed of; but this was only so where the exceptions were filed before the motion to dissolve was made. Even under the English practice it was not permissible for the complainant to prevent the hearing of a motion to dissolve already made, by filing exceptions to the answer. The American rule is that the filing of exceptions will never per se prevent the hearing of a motion to dissolve; but the court will always, at the hearing of the motion, look into the exceptions, and give them such weight as they are entitled to in the determination of the question of dissolution. 2 High on Injunctions (2d ed.), § 1602.

The provision of our Code, quoted supra, is intended to incorporate the American rule into our statutory law. It is the equivalent of saying that the motion to dissolve shall be entertained, unless the Chancellor shall be of opinion that the exceptions are well taken, and affect the merits of the motion to dissolve. To determine these questions he must of course examine the bill, the answer, and the exceptions. When he has done this, he disregards the latter, if he finds that in no point of view are they well taken ; and he does the same thing, even though he finds them well taken as to some aspects of the case, if he shall be of opinion that they in no way affect the merits of the motion to dissolve. If this be not the law, then the complainant can always, by filing the most frivolous and unfounded exceptions, defeat the hearing of the motion to dissolve, even though, as in this case, the exceptions are filed after the motion to dissolve, and possibly for the express purpose of p2-eventing a hearing 021 the motion.

A motio2i is made in this court to dismiss the appeal in this case upon the ground that it is not such an order as can be made the subject of an appeal, and we were at first inclined to adopt this view; but, upon better consideration, We think that the action of the Chancellor was the equivalent of an order overruling the motion to dissolve, and is therefore appealable under § 2811 of Code of 1880, if the Chancellor thinks an appeal necessary or proper,“ in order to settle the principles of the cause.” It was granted for this purpose, as we are advised by the order allowing it; and, as the answer is not before us, we cannot say that it was not proper for that purpose, and hence must assume that the Chancellor was correct in thinking that it was.

Reversed and remanded.