Drane v. Winter , 41 Miss. 517 ( 1867 )

Ellbtt, J.,

delivered tbe opinion of the court.

Tbe answer of Winter, one of tbe defendants, was filed September 26, 1866, and a motion entered on tbe same day to dissolve tbe injunction on bill, answer, and exhibits filed. Tbe answer purports to be tbe joint answer of Winter, and of Ricbs, administrator of Mary R. Fort, but is not sworn to by Richs, who was the representative of the’ only party having any interest in the cause ; Winter being only a trustee in a deed of trust. On the 20th of October, 1866, the motion was heard, and after ordering the injunction to be dissolved, the court proceeded to decree that the bill be dismissed.

The propriety of dissolving the injunction under the circumstances is not brought in question by the assignment of errors, but it is insisted that it was error to dismiss the bill.

It was certainly erroneous to dismiss the bill on a mere motion to dissolve the injunction on an answer denying the facts upon- which the equity of the complainant depends. Parties are in all cases entitled to five months for taking depositions after answer filed, unless the complainant will admit the answer to be true. Rev. Code, 554, art. 89.

Injunctions may be dissolved for want of equity on the face of the bill, without answer, or upon answer denying the equity of the bill; but in either of these cases the bill cannot be dismissed until the last 'day of the next succeeding term of the court. Rev. Code, 551, art. 69. The complainant is entitled to this time to taire testimony in support of his bill, and to make application to reinstate his injunction. If he fails to show cause to the contrary, his bill then stands dismissed, of course, and it is the duty of the clerk to make such entry.

It is urged, on the other side, that there was really no equity on the face of the bill, or, if there was, it has now ceased to have any existence by lapse of time, and that as the plaintiff’ in error has therefore sustained no injury by the dismission of his bill, the court ought not to reverse the decree. And the case of Simple v. McGallagan, 10 S. & M. 98, is cited and relied upon.

It would have to be a very clear case that the complainant could by no possibility suffer any prejudice from the error, in order to justify the court in refusing to reverse when the error itself is palpable. In this case we are by no means satisfied that the complainant was n ot entitled to relief on the case made by his bill, and even if his equity has ceased to exist, as was insisted at the bar, he might still be entitled to recover costs.

We think, therefore, that the decree dismissing the bill should be reversed, and tbe cause remanded for. further proceedings.-