§ 520. Dissolution for want of equity.

Want of equity on the face of the bill is ground for the dissolution of an injunction, whether the defendant has answered or not.73 Even where a bill is not fully answered, if the bill shows no equity, it will not prevent the dissolution of the injunction.74 On a motion to dissolve for want of equity appearing on the face of the bill, the facts alleged will be taken as true, as on a demurrer.75 A motion to dissolve for want of equity on the face of the bill may be made at any time;76 and it is held to be no error to dissolve an injunction without notice, if there is no equity in the bill.77

§ 521. Answer denying averments of bill.

It is a general rule that the injunction will be dissolved upon the coming in of the answer denying all of the equity of the bill; but this rule is not inflexible, and the dissolution rests in the discretion of the court.78 Where a motion to dissolve is heard on bill and answer, the responsive allegations of the anHowell, 15 Ga. 554. In cases of irreparable mischief, the dissolution of an injunction rests in the sound discretion of the court, whether applied for before or after answer. Norway v. Rowe, 19 Ves. 153; Poor v. Carleton, 3 Sumn. 70. Fed. Cas. No. 11,272; Hollister v. Barkley, 9 N. H. 230; Attorney General v. Oakland County Bank, Walk. (Mich.) 90.

78 Chesapeake & Ohio Canal Co. v. Baltimore & O. R. Co., 4 Gill & J. (Md.) 1; Morrison v. Coleman, 87 Ala. 655, 6 So. 374, 5 L. R. A. 384; White Sulphur Springs Co. v. Robinson, 3 W. Va. 542; Morris Canal & Banking Co. v. Biddle, 4 N. J. Eq. 222; Hart v. Clark, 54 Ala. 490.

74 Quackenbush v. Van Riper, 1 N. J. Eq. 476.

75 Titus v. Mabee, 25 Ill. 257; Bennett v. McFadden, 61 Ill. 334.

76 Williams v. Berry, 3 Stew. & P. (Ala.) 284.

77 White Sulphur Springs Co. v. Robinson, 3 W. Va. 542; Chesapeake & Ohio Canal Co. v. Baltimore & O. R. Co., 4 Gill & J. (Md.) 1; Williams v. Berry, 3 Stew. & P. (Ala.) 284. The court may, of its own motion, dissolve an injunction when it appears that the writ has issued in a case where the party asking it had no right to it. Conover v. Ruckman, 32 N. J. Eq. 685.

78 Nelson v. Robinson, Hempst. 464, Fed. Cas. No. 10,114; Poor v. Carleton, 3 Sumn. 70, Fed. Cas. No. 11,272; Owen v. Brien, 2 Tenn. Ch.

swer must be taken as true.79 It is held that an answer under oath is evidence for the answering defendant, at the hearing of the motion to dissolve an injunction, although the bill does not call for a sworn answer. 80 Even where the bill on which an injunction depends is verified by the affidavit of a credible and disinterested witness, the defendant is entitled to have the injunction dissolved on the coming in of an answer denying the whole equity of the bill under oath, and it makes no difference that the bill is sworn to by several complainants.81 Where the allegations of the bill are not fairly met by the answer, or the answer is unsatisfactory as to any matter which is an essential part of the complainant's equity, or does not deny, explicitly, the facts on which that equity is founded, the injunction will not be dissolved.82 The denial must be founded on personal knowledge, not merely on information and belief;83 but this rule is subject to exceptions, and in some cases it is held that a positive denial by the defendant is sufficient, although the facts are not within his own knowledge, as where, in case of a bill alleging an agreement made by the defendant's agent, the defendant and agent deny the allegation, and circumstances corroborate their denial.8

84

Upon the motion to dissolve, allegations of the bill not denied by the answer are taken to be true.85 The answer is to be re

295; Snyder v. Seeman, 41. N. J. Eq. 405, 5 Atl. 637; Spencer v. Jones, 85 Va. 172, 7 S. E. 180; Blundon v. Crosier, 93 Md. 355, 49 Atl. 1. 79 Webster v. Hardisty, 28 Md. 592.

80 Walker v. Hill's Ex'rs, 21 N. J. Eq. 191; Manchester v. Dey, 6 Paige (N. Y.) 295; Gelston v. Rullman, 15 Md. 260; Webster v. Couch, 6 Rand. (Va.) 519.

81 Manchester v. Dey, 6 Paige (N. Y.) 295.

82 Randall v. Morrell, 17 N. J. Eq. 343; Gibby v. Hall, 27 N. J. Eq. 282; Columbus & W. Ry. Co. v. Witherow, 82 Ala. 190, 3 So. 23; Thomas v. Horn, 24 Ga. 481.

83 Nelson v. Robinson, Hempst. 464, Fed. Cas. No. 10,114; Lake Shore & M. S. R. Co. v. Felton, 103 Fed. 227; Roberts v. Anderson, 2 Johns. Ch. (N. Y.) 202; Ward v. Van Bokkelen, 1 Paige (N. Y.) 100.

84 Campbell v. Runyan, 42 N. J. Eq. 843, 8 Atl. 298; Coale v. Chase, 1 Bland (Md.) 136; Clayton v. Lyle, 55 N. C. 188.

85 Wakeman v. Gillespy, 5 Paige (N. Y.), 112; Young v. Grundy, 6 Cranch (U. S.) 51; Hamilton v. Whitridge, 11 Md. 128, 69 Am. Dec.

garded only so far as it is responsive to the bill.86 New matter set up by way of avoidance is not sufficient cause for disselution.87

88

There is a difference of opinion concerning the effect of an unsworn answer, where the bill waives an answer under oath. Some authorities hold that such an answer is no more than a mere pleading.s Others hold that the sole effect of such waiver is to dispense with the rule requiring the evidence of two witnesses to overcome the answer, and that the complainant cannot thus impair the right of the defendant to have the injunction dissolved on the denials of his unsworn answer.89

$ 522. Where there are several defendants.

The general rule is that an injunction will not be dissolved until all the defendants have answered; but this rests in the discretion of the court, and it may be dissolved without compelling an answer from all the defendants.90 The rule that an injunction will not be dissolved until all the defendants have answered applies only to cases where the defendants have an identity of interests, and the defendants having the substantial interests in the subject-matter of the controversy have not an

184; Yale v. Moore, 3 Tenn. Ch. 76; Albert v. Strange, 1 Macn. & G. 42; Rich v. Thomas, 57 N. C. 71.

86 Hardy v. Summers, 10 Gill & J. (Md.) 316, 32 Am. Dec. 167; Hutchins v. Hope, 12 Gill & J. (Md.) 244; Cornelius v. Post, 9 N. J. Eq. 196; Jackson v. Jackson, 84 Ala. 343, 4 So. 174.

87 Robinson v. Cathcart, 2 Cranch, C. C. 590, Fed. Cas. No. 11,946; Johnston v. Corey, 25 N. J. Eq. 311; Hardy v. Summers, 10 Gill & J. (Md.) 316, 32 Am. Dec. 167; Minturn v. Seymour, 4 Johns. Ch. (N. Y.) 498; Cole Silver Min. Co. v. Virginia & Gold Hill Water Co., 1 Sawy. 685, Fed. Cas. No. 2,990.

88 Metropolitan Grain & Stock Exchange v. Chicago Board of Trade, 15 Fed. 847; Gray v. McCance, 11 Ill. 325.

* High, Inj. § 1527; Lockhart v. City of Troy, 48 Ala. 579; Ingles v. Straus, 91 Va. 209, 21 S. E. 490.

20 Baltimore & O. R. Co. v. City of Wheeling, 13 Grat. (Va.) 40; Reynolds v. Mitchell, 1 Ill. 177; Jones v. Magill, 1 Bland (Md.) 177; Smith v. Loomis, 5 N. J. Eq. 60; Robinson v. Cathcart, 2 Cranch, C. C. 590, Fed. Cas. No. 11,946.

swered.91 As a general rule, an injunction will not be dissolved without the answer of the defendant on whom the grava men of the charge rests; but if the answering defendant is able to lay all the facts before the court which show that the complainant has no equity, an injunction will be dissolved without the answer of the other defendants.92

§ 523. Motion to dissolve by one in contempt.

It is a general rule that one in contempt for violating an injunction must purge himself of such contempt before he can move to dissolve it;93 but where the nature and extent of the punishment to be imposed for such contempt depend on the determination of the question whether the injunction shall be continued, the motion may be entertained.94

$ 524. Necessity of giving notice of motion to dissolve.

As a general rule, reasonable notice should be given of the application to dissolve an injunction.95 A general notice is sufficient if the motion to dissolve is for want of equity; but if there be another ground, not touching the equity, it should be stated.96

91 McVickar v. Wolcott, 4 Johns. (N. Y.) 510; Wilson v. Hendricks, 54 N. C. 295; Marvel v. Ortlip, 3 Del. Ch. 9; Dennis v. Green, 8 Ga. 197; Rogers v. Hosack's Ex'rs, 18 Wend. (N. Y.) 319; Livesay v. Feamster, 21 W. Va. 83; Hayzlett v. McMillan, 11 W. Va. 464.

92 Coleman v. Gage, Clarke, Ch. (N. Y.) 295; Gregory v. Stillwell, 6 N. J. Eq. 51; Baltimore & O. R. Co. v. City of Wheeling, 13 Grat. (Va.) 40; City of Annapolis v. Harwood, 32 Md. 471. See, for cases where there are several defendants, Wisham v. Lippincott, 9 N. J. Eq. 353; Noble v. Wilson, 1 Paige (N. Y.) 164.

93 Fadely v. Tomlinson, 41 W. Va. 606, 24 S. E. 645; Jacoby v. Goetter, 74 Ala. 427; Turpin v. Jefferson, 4 Hen. & M. (Va.) 483.

94 Crabtree v. Baker, 75 Ala. 91, 51 Am. Rep. 424; Endicott v. Mathis, 9 N. J. Eq. 110. But see Kaehler v. Dobberpuhl, 56 Wis. 497, 14 N. W. 631. See Hovey v. Elliott, 167 U. S. 409, holding that the power of the court to deny a favor to a person in contempt does not include the power to refuse to him the right to defend in the principal case on the merits. This case extensively reviews the authorities on this subject. 95 Wilkins v. Jordan, 3 Wash. C. C. 226, Fed. Cas. No. 17,665.

96 Morris Canal & Banking Co. v. Bartlett, 3 N. J. Eq. 9; Brown v.

§ 525. Form of notice of motion to dissolve.

[Title of court and cause and address to solicitors.]

Please take notice that on Monday morning next, the 11th inst., at 10 o'clock a. m., or as soon thereafter as counsel can be heard, we shall, before his honor, Judge Tuley, in the room usually occupied by him as a court room, ask the court to take up and dispose of the demurrer heretofore filed in the above-entitled cause. At the same time and place we shall move the court to dissolve the injunction heretofore granted in the above-entitled cause.

Dated, Chicago, Oct. 4, 1897.

S. B. & S.,

Solicitors for Defendant.

Received a copy of the foregoing notice this 4th day of October, A. D. 1897. E. O. B., Solicitor for Complainants.97

§ 526. Affidavits in support of motion to dissolve.

The practice relative to the use of affidavits on a motion to dissolve an injunction is frequently regulated by statute or rule of court.98 The question is involved in considerable confu

Winans, 11 N. J. Eq. 267. A notice of motion to dissolve for irregularity in the proceedings is insufficient. Miller v. Traphagan, 6 N. J. Eq. 200. A notice is not vitiated by the misdescription of complainant in the bill, where the cause to which it relates cannot be mistaken. Hiller v. Cotten, 54 Miss. 551; Smith v. Painter, 10 N. J. Law J. 182. 97 This notice is taken from Gordon v. Winston, 181 Ill. 338, 54 N. E. 1095.

98 See Hardt v. Liberty Hill Consolidated Mining & Water Co., 27 Fed. 788; Brown v. Haff, 5 Paige (N. Y.) 235, 28 Am. Dec. 425; Village of Seneca Falls v. Matthews, 9 Paige (N. Y.) 504. The application to dissolve an injunction must be supported by evidence which is usually given by affidavit on the part of the defendant in answer to that upon which the injunction was obtained, and it is said that the case thus made by the defendant may be met by counter evidence on the part of the complainant. 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 1676. Mr. Justice Story said on this point: "The plaintiff, under some circumstances, is entitled to read affidavits in contradiction to the answer; not, indeed, to all points, but to many points." Poor v. Carleton, 3 Sumn. 70, Fed. Cas. No. 11,272. Lord Eldon declared that the practice of dissolving an injunction if the answer denied all the circumstances upon which the equity of the bill was founded was carried so far that, except in a few excepted cases, though five hundred affidavits were filed, not only by the complainant, but by many witnesses, not one could be read as to this purpose. Clapham v. White, 8 Ves. 36; Long