Seebor v. Hess

5 Paige Ch. 85 | New York Court of Chancery | 1835

The Chancellor.

There was a technical irregularity in serving the injunction without serving the defendant with a subpoena to appear and answer. (4 Paige's Rep. 439.) But it was too late to give notice of an application to dissolve the injunction on that ground, after the subpoena had been actually served on the same defendant. The neglect of the complainant to serve the injunction and subposua, immediately upon the other twenty defendants, living in different parts of the state, formed no ground for dissolving or setting aside the injunction. Those upon whom it is served may appear and put in their answers; and if there has been any negligence by the complainant, in serving the subpoena, or in procuring the appearance or answers of the other defendants, those who have appeared and answered will not be precluded from moving to dissolve the injunction upon their own answers alone. The service of a copy of the bill and of the injunction on each of these twenty defendants, was an unnecessary and useless expense, and is not taxable either as against the adverse party or as between solicitor and client. It was sufficient, in a case of this kind, where all the defendants were prosecuting a joint suit against the complainant, to serve a copy of the injunction upon any one of the defendants, and upon their attorney in the suit at law. The subpoena, however, must be served upon each defendant, unless some of them elect to appear voluntarily. The practice of making out separate copies of the bill for each defendant, and serving such copies with the subpoena, cannot be sanctioned. In ordinary cases, no copy of the bill to be served on the defendant is taxable, (until after he has appeared in the cause. And where several defendants appear by the same solictor, only one copy of the bill, to be served on such solictor, can be allowed on taxation, although the defendants appear at different times. The copy first served on the solicitor must answer for all of the defendants who appear by him.

The motion to dissolve or set aside the injunction must be denied. But as I cannot charge the defendants with the expense of all the useless mass of papers which have been read in opposition to this motion, the application is denied without costs. And it may now be considered as the settled practice of this court, in all cases of special motions and petitions hereafter to be made or presented, that if the affidavits or other papers upon which the application is founded, or those which are read in opposition thereto, are unnecessarily prolix or voluminous, that circumstance alone will be considered a sufficient reason for refusing a solicitor the costs to which he would otherwise have been entitled as against the adverse party, if such useless or improper papers had not been produced by him.