sion, and the statutes, rules of court, and decisions of the respective jurisdictions should be consulted to determine whether or not the reading of such affidavits is permissible." § 527. Considerations determining question of dissolution. 100 If a reasonable doubt exists in the mind of the court whether the equity of the complainant be sufficiently negatived by the answer, the court will continue the injunction to the hearing.10 When a proper ground for injunction is admitted by the answer, and the answer admits that there remains a dispute be tween the parties, the injunction will be continued until further order.101 If it appears that the dissolution of the injunetion would work irreparable injury to the complainant, it will v. Brown, 4 Ala. 622; Merwin v. Smith, 2 N. J. Eq. 182. It is said by Mr. Foster that it was originally thought that the complainant could not show that any of the allegations contained in the answer were false, but that such doctrine has, in the United States at least, been exploded, and it is well settled that the complainant can not only dispute the truth of such allegations, whether they are positive or nega tive, but is at liberty to file counter affidavits to reply to new matter contained in the defendant's affidavits or answer. Foster, Fed. Pr. (2d Ed.) § 235, citing Day v. New England Car Co., 3 Blatchf. 154, Fed. Cas. No. 3,686; Merwin v. Smith, 2 N. J. Eq. 182. 99 See, on this question, Bellona Co.'s Case, 3 Bland (Md.) 442; Withers' Ex'r v. Dickey, 1 Stew. (Ala.) 190; Kidd v. Bates, 124 Ala. 670, 27 So. 491. See Lewis v. Leak, 9 Ga. 95; Henry v. Watson, 109 Ala. 335, 19 So. 413; Hollins v. Mallard, 10 How. Pr. (N. Y.) 540; Bradford v. Peckham, 9 R. I. 250; Eastburn v. Kirk, 1 Johns. Ch. (N. Y.) 444. Where the mischief arising from the act complained of would be irreparable, the settled practice is for the complainant to read affidavits in opposition to the answer. Swindall v. Bradley, 56 N. C. 353. It is inconvenient and undesirable, on motion to dissolve an injunction, to permit affidavits to be read in support of a bill, and in cases proper for affidavits under the English practice, it is preferable to let the injunc tion stand to the hearing, it being considered that no injustice will be done the defendant, since he stands secured by the injunction bond, except in cases where either to dissolve or to continue would work ir reparable injury, and a prompt decision becomes, therefore, necessary. Kersey v. Rash, 3 Del. Ch. 321. 100 Lowe v. Davidson County Com'rs, 70 N. C. 532. 101 Lynch v. Colegate, 2 Har. & J. (Md.) 34. 103 be continued.102 So, if he would be deprived of the benefit of the suit, if he should finally prevail, as by removing from the jurisdiction the property which is the subject-matter.' If the writ cannot injure the defendant, but if dissolved the complainant might be remediless, or if dissolution will result in greater hardship than a continuance of the injunction, the application will be denied.104 Where no public inconvenience will result from the continuance of the injunction against municipal authorities, and, on the other hand, the private interests inconvenienced are considerable, affecting not only the complainant, but many others, an injunction to prevent the removal of a building alleged to encroach on a building line will be retained until the final hearing. 105 If the injunction no longer subserves any useful purpose, it will be dissolved.106 That a continuance of the injunction will work great injury to the defendant's business is a point for consideration.107 If its continuance is a material injury to the defendant, and its dissolution is no present injury to the complainant, or cannot prejudice his right, the court may, in its discretion, dissolve it.108 § 528. Effect of bad faith in obtaining injunction. If an injunction is obtained by fraud or misrepresentation or bad faith, it will be dissolved.1 It makes no difference 109 102 Kersey v. Rash, 3 Del. Ch. 321; Fleischman v. Young, 9 N. J. Eq. 620; Linton v. Denham, 6 Fla. 533. 103 Owen v. Brien, 2 Tenn. Ch. 295; Hoagland v. Titus, 14 N. J. Eq. 81. 104 Hammond v. Hammond, Clarke, Ch. (N. Y.) 151; Chetwood v. Brittan, 2 N. J. Eq. 438; Owen v. Brien, 2 Tenn. Ch. 295; New v. Bame, 10 Paige (N, Y.) 502. 105 Manko v. Borough of Chambersburgh, 25 N. J. Eq. 168. 106 In re Jackson, 9 Fed. 493; Lowe v. Warren Canal Co., Wright (Ohio) 616. 107 Furman v. Clark, 11 N. J. Eq. 135. 108 Bechtel v. Carslake, 11 N. J. Eq. 244; Planters' & Merchants' Bank v. Laucheimer, 102 Ala. 454, 14 So. 776. 109 Endicott v. Mathis, 9 N. J. Eq. 110; Ch. 780; Clifton v. Robinson, 16 Beav. 355; 130. Black v. Huggins, 2 Tenn. that the misrepresentation was through inadvertence, misinformation, or otherwise.1 § 529. Effect of laches. 110 In cases of injunction, more diligence in prosecuting the suit is required than in ordinary suits. It is the duty of the complainant, having obtained an injunction, to prosecute his suit with all diligence, and failure to do so is a cause for dissolution.111 But if there is no evidence of willful procrastination, or where the defendant resides beyond the reach of the process of the court, and there is mere delay in taking out a process, or in prosecuting the suit, the injunction will not be dissolved.112 § 530. Order of dissolution. Where a part only of the defendants apply to dissolve an injunction, it can be dissolved only as to them.113 Upon dissolution, it is proper to undo what has been wrongfully done by means of the injunction, and to restore the status quo.114 And, on dissolution of the injunction, it is proper for the court to restore the defendant to the possession of the premises of which the complainant has taken possession pending the injunction, by means of a writ of restitution.115 The dismissal of a suit, though made without prejudice, operates to dissolve the injunetion.116 Upon dissolving the injunction, the court may, in its discretion, impose terms, as by requiring the defendant to give a bond of indemnity.117 110 Endicott v. Mathis, 9 N. J. Eq. 110. See, as to immaterial misstatements, Frome v. Board of Chosen Freeholders of Warren County, 33 N. J. Eq. 464. 111 Classen v. Danforth, 56 Ill. App. 552; Huffman v. Hummer, 17 N. J. Eq. 263; Depeyster v. Graves, 2 Johns. Ch. (N. Y.) 148; Atkins v. Billings, 72 Ill. 598. 112 Read v. Consequa, 4 Wash. C. C. 174, Fed. Cas. No. 11,606; Schermerhorn v. L'Espenasse, 2 Dall. 360, Fed. Cas. No. 12,454. 113 Teller v. Van Deusen, 3 Paige (N. Y.) 33. See Duncan v. State Bank, 2 Ill. 262. 114 Herrington v. Herrington, 11 Ill. App. 121; Wangelin v. Goe, 50 Ill. 459. 115 Lake Shore & M. S. Ry. Co. v. Taylor, 134 Ill. 603, 25 N. E. 588. 116 Yale v. Baum, 70 Miss. 225, 11 So. 879; Coleman v. Hudson River Bridge Co., 5 Blatchf. 56, Fed. Cas. No. 2,983. 117 City of Portland v. Oregonian Ry. Co., 6 Fed. 321; Cook v. Jenkins, § 531. Form of decree dissolving injunction and dismissing bill for want of equity. [Title of court and cause.] This day came the parties hereto, by their respective solicitors, and thereupon came on to be heard the motion of the defendants to dissolve the injunction heretofore granted in this cause, which was argued by counsel, and the court, being fully advised in the premises, Doth order, adjudge, and decree that the injunction heretofore granted herein be and it is hereby dissolved. And, on motion of the solicitor for the defendants, it is ordered that leave be and it is hereby granted to the defendants to file a suggestion of damages herein within ten days from this date. And, on motion of the solicitor for the defendants, it is further ordered, adjudged, and decreed that this cause be and it is hereby dismissed out of this court, at complainants' costs, for want of equity, but retained for the purpose of suggesting damages. And thereupon it is ordered and considered that the defendants have and recover of the complainants their costs in this behalf expended, to be taxed, and that execution issue therefor.118 § 532. Dismissal of bill upon motion to dissolve. It has been held in Illinois that, where a bill for injunction only is before the court, and a temporary injunction has been granted, a motion to dissolve the injunction for want of equity has the same effect as a demurrer to the bill, and the court, on sustaining the motion to dissolve the injunction, may properly dismiss the bill, and is not required to retain the same for hearing on the pleadings and proofs. The same rule prevails where a bill is filed for injunction only, which, on hearing, is refused. The bill may, in such case, be dismissed for want of equity, for the same reason as in a case where a preliminary injunction has been granted, and a motion has been entered to dissolve the same.119 35 Ga. 113; Wood v. Braxton, 54 Fed. 1005; Campbell v. Point Pleasant & Ohio River R. Co., 23 W. Va. 448. 118 The foregoing form of decree was employed in American Live Stock Commission Co. v. Chicago Live Stock Exchange, 143 Ill. 210, 32 N. E. 274. 119 Field v. Village of Western Springs, 181 Ill. 186, 54 N. E. 929. See, for form of order in such case, supra, § 531. (545) § 533. Form of decree for perpetual injunction. [Title of court and cause.] This cause coming on to be heard upon the 3d day of March, A. D. 1898, being one of the days of the February term of this court, upon the bill of complaint in said cause, and the demurrer filed by the defendant thereto, and the cause having been argued by the solicitors for the complainants and defendant, and the court being fully advised in the premises, It is hereby ordered that the demurrer to the said bill of complaint be overruled; and thereupon the defendant, having elected to stand by his demurrer, waives the right to answer the said bill; and thereupon the court finds the material allegations in the said bill of complaint to be true, and that the equity of the said cause is with the complainants. And it is ordered, adjudged, and decreed that the said defendant, C. U. G., and his agents, servants, attorneys, and assigns, be and each and all of them are hereby restrained and perpetually enjoined from further occupying or trespassing upon the submerged lands of Lake Michigan, opposite lot thirteen of Simmons & Gordon's addition to Chicago, a subdivision of a portion of the school trustees' subdivision of fractional section sixteen, township forty north, range fourteen east of the third principal meridian, in the county of Cook aforesaid; said lot thirteen being shown upon the plan made by said commissioners of Lincoln Park, referred to in the said bill of complaint, a copy of which plan, upon a reduced scale, is made an exhibit to said bill of complaint, which said submerged lands are vested in the said commissioners of Lincoln Park in fee simple, according to the allegations in the said bill of complaint. It is further ordered, adjudged, and decreed that the said defendant, C. U. G., be and he hereby is ordered and directed to remove forthwith the pier by him built, and which is described in the said bill of complaint, opposite the land aforesaid, and which was built by him upon the submerged lands described, opposite the said lot thirteen. It is further ordered, adjudged, and decreed that the costs of this cause be taxed against the said defendant, C. U. G. From which said decree the said defendant, C. U. G., prays an appeal to the supreme court of the state of Illinois, which is allowed on his filing a bond, to be signed by himself, with surety to be approved by the court, in the sum of two hundred and fifty dollars, within twenty days from the date of the entry of this decree. M. F. T., Judge.120 120 This decree was entered in Gordon v. Winston, 181 Ill. 338, 54 N. E. 1095. |