Dennis v. Green , 8 Ga. 197 ( 1850 )

By the Court.

Lumpkin, J,

delivering the opinion.

In February, 1846, J. W. & R. Levette obtained a judgment against one David M. Causey, upon which an execution issued, and was transferred, by the plaintiffs, to Isaac Dennis, Junior, in the month of May thereafter, and was levied by the assignee, in 1848, on a house and lot in Knoxville. Causey, the defendant, being dead, Gilben J. Green, his administrator, filed an injunction bill against Isaac Dennis, Junior, and Isaac Dennis, Senior — both individually, and as administrators of Jeremiah Dennis, deceased, and Joel B. Morgan, Deputy Sheriff. The bill was made returnable to the February Term, 1849, of the Superior Court of Crawford County. Intermediate the service and appearance term, Isaac Dennis, Senior, departed this life — his answer having been previously made and sworn to, and filed in Court, subsequent to his death.

[1.] Application was made to dissolve the injunction, upon the ground, that the answers had fully denied all the equity in the bill; but this motion was refused by the Chancellor, for the reason, that Isaac Dennis, Senior, was a necessary party to the hill; that he could not judicially consider his answer, having been filed after his death ; and that he would not entertain the motion to dissolve the injunction, until the representatives of Isaac Dennis, Senior, were made parties defendants to the bill.

Was the Court right in refusing to entertain the motion to dissolve the injunction ?

It will be observed, that the execution which was enjoined, was the exclusive property of Isaac Dennis, Junior, who held it, and was seeking to enforce it, by virtue of an assignment to him, individually, from the Levettes, the original plaintiffs. Conceding, then, what is assumed by the Court below to be true, that Isaac Dennis, Senior, was a necessary party to the case made by the bill, does it follow, that the assignee of the fi.fa. whose legal rights were restrained, was compelled to wait until the estate of old man Dennis was represented, before he could take steps to get rid of the injunction 1 It seems to me, that, to hold up the injunction on that account — when, if the representatives were made a party, it is apparent that the interest of their testator or intestate could, in no wise, be affected by the interlocutory decree respecting the injunction — would be a great perversion of justice.

The principle seems to be well established, that whenever the party against whom the injunction operates, fully answers the bill, denying the equity, it is competent for such party to move, at any time, for a dissolution of the injunction, without waiting for the answers of the other defendants. 3 Davis’ Ch. Plead, & Pr. 1824. Newland’s Ch. 98. Joseph vs. Doubleday, 1 Ves. & Beam. 497, ’8. Glascott vs. The Copper Mines Company, 11 Sim. 314. Breedlove vs. Stimp, 3 Yerg. 257. Goodwyn vs. State Bank, 4 Dessauss. R. 389.

[2.] But here, the answer of Isaac Dennis, Senior, was made and sworn to, before he died. It was called for by the complainant, to prove the community of interest between the defendants. Being dead, he can never get any other or further answer. For what purpose, then, should this injunction be continued against Isaac Dennis, Junior ? It could avail nothing, to postpone the hearing of this application, in order to make the representatives of Isaac Dennis, Senior, a party. Suppose, being appointed and qualified, they should attempt to withhold from the Court the answer made by the deceased — would not the Chancellor force them to file it, if it had not already been done 1 Would not the complainant be entitled to the full benefit of the admissions which it contains, as to the fraudulent combination between the father and the son 1 Equally competent, we apprehend, is it, for Isaac Dennis, Junior, to use this answer, to get rid of the injunction, provided it negatives all the facts and circumstances charged in the bill, in order to obtain the injunction;

[3.] But we do not rest our judgment mainly upon this ground, but upon the other view, namely, that as to the injunction, Isaac Dennis, Senior, is a mer& formal party.

[4.] Where all the defendants are interested in the injunction, as well as the final decree to be rendered, there is a diversity of authority to be found in the books, as to whether or not dll the defendants must answer, before the dissolution of the injunction can be granted. 2 Eq. Cas. Ab. 2, marg.note (a). In our judgment, however, this is not such a case.

J udgment reversed.