Schreiber v. DrosnessSchreiber v. Drosness
The defendants do not deny having disobeyed the terms of the injunction, but their counsel contend that they ought not be adjudged contemnors because the filing of the appeal suspended the operation of the decree until the court of
As to the effect of an appeal from an injunctive decree of this court on the operation of the decree, the leading case is Pennsylvania Railroad Co. v. National Docks, &c., Co., 54 N.J. Eq. 647. In that case the appellant, after having been decreed and enjoined by the court of chancery from interfering with the respondent crossing the appellant‘s tracks, had taken an appeal to the court of errors and appeals, and pending the appeal had refused to permit the crossing. On application to the court of chancery, the appellant was adjudged in contempt for disobedience of the decree, and on appeal from the contempt order the appellate court held that the court of chancery has no power, either through long adopted practice or under its rules, to exercise a discretion whether its decree shall or shall not be executed during the pendency of an appeal from such decree, because such function would be inconsistent with the paramount cognizance over the subject given to the appellate court by the constitution, and the decision of the court of errors and appeals continues: “The opinion of this court is that the decree in question lost for the time all its force, and that the appellant could not fall into contempt by resisting its execution. It is likewise the opinion of this court that an appeal in all cases will have that effect given to it which shall be necessary to preserve the subject to which the appellate procedure relates, in such a condition as will enable this court to render an efficacious decree in the premises. That for this purpose an injunction decree will be suspended or continued, or a previous injunction revived, by the act of filing an appeal, whenever such construction shall be necessary for the end just stated.”
Six years after this pronouncement, the legislature passed an act (
The opinion of the court of errors and appeals in the National Docks Case has been discussed in the light of this statute, and the apparently wide scope of the decision has been limited in subsequently reported cases, but it is still authority for the proposition, which should be applied to the instant case, that an injunction should not issue, or, if allowed, should not be continued in force, pending an appeal from a decree awarding the writ, if the enforcement of the writ will destroy or impair the subject of the appeal. Laird v. Atlantic Coast Co., 73 N.J. Eq. 5; Ashby v. Yetter, 78 N.J. Eq. 173; Robinson v. Robinson, 86 N.J. Eq. 165; Bijur Motor Co. v. International Association, &c., 92 N.J. Eq. 183.
Would the injunction in this case, if enforced, have such effect? The defendants had altered the buildings on their land to adapt them for summer hotel or boarding house purposes, and they had put them to such use prior to the filing of complainants’ bill. The right of the defendants to occupy and use their land and buildings for private dwelling purposes is not questioned, and the subject-matter of the suit and of the appeal is whether they have the further right, not only after the appeal is determined but at the present time, to conduct thereon the business in which they were engaged at and prior to the filing of the bill. It now seems to me that to prevent them from continuing their business from the time the final decree herein was entered to the time the appellate court hands down its decision, would force them to suffer impairment or diminution of their rights, if the appellate court should determine that the final decree was erroneous, because they would lose not only last summer‘s business but they would also sustain such future loss as would probably result from their patrons finding satisfactory
Counsel for the complainants urges that Cape May Yacht Club v. Cape May Yacht and Country Club, 82 N.J. Eq. 204, is a precedent for the enforcement of this injunction. In that case the final decree of the court of chancery enjoined the defendant from engaging in the enterprise of a yacht club under its corporate title, and from using a certain pennant. On motion on behalf of the complainant, an injunction was ordered to issue forthwith, notwithstanding that an appeal from the decree had been taken promptly, because the learned vice-chancellor found that the restraint would not impair the subject-matter of the appeal, in that the defendant could continue its enterprise and its pastimes and pursuits as a yacht club without advertising under the name and pennant complained of. In the instant case the defendants’ enterprise is operating a boarding house or hotel, and the complainants’ attack is directed against this enterprise; therefore, the right to maintain their business now, as well as in the future, is involved in the subject-matter of the appeal, and if the restraint were to be enforced pending the appeal, they would be forced to abandon the right for which they contend, at least, temporarily.
Counsel for the complainants further urges, on the authority of Roseberg v. American Hotel Co., 95 N.J. Eq. 640, that because the writ had issued and had not been modified or suspended on defendants’ application, the defendants are in contempt for disobeying its terms, regardless of whether the writ was properly issued or its stay properly refused. In the Roseberg Case the defendant, who had been restrained until final hearing from interfering with the complainant‘s
If I were now to attempt to enforce the injunction in this case by holding the defendants in contempt, I feel I would be doing them a grave injustice, and that I would be guilty of reversible error. I shall discharge the orders to show cause issued against them.