Stitt v. Hilton , 31 N.J. Eq. 285 ( 1879 )

The opinion of the court was delivered by

Dalrimple, J.

The material facts of this case will be found in the opinion of the court below. It is not necessary to restate them here. The decree below, dissolving the injunction, is affirmed, upon the single ground that the averments in the complainant’s bill, on which he bases his right to an injunction, are fully denied by tbe answer, which is made under -oath.

It appears that exceptions have been filed to the answer, .and it was much criticised in the argument before this court. The exceptions, however, do not affect the matters on which it is alleged that the complainant’s claim to an injunction is founded. As to them, the answer is full, .and denies the equities set up. The filing of exceptions to an answer is, of itself, no objection to the dissolution of an injunction. The court will consider the exceptions only for the purpose of ascertaining whether they relate to those parts of. the bill on which the injunction was awarded. The general rule is, that if the answer fully denies the equities which moved the court to grant the injunction, it will be dissolved, though there are other parts of the bill which remain unanswered. Exceptions to the answer cannot, therefore, avail the complainant on motion to dissolve an injunction on bill and answer, unless such exceptions point out a failure to answer the ground of equity on which the injunction was allowed. Wyckoff v. Cochran, 3 Gr. Ch. 421; Robert v. Hodge, 1 C. E. Gr. 299; McGee v. Smith, Id. 462; Mitchell v. Mitchell, 5 C. H. Gr. 234.

The rule that an injunction will be dissolved if the equity of tihe bill is fully denied by the answer, has its exceptions. This case has not, however, been brought within any of them. Vide cases cited in the opinion of the vice-chancellor, and Firmstone v. De Camp, 2 C. E. Gr. 309.

We have not now the facts fully enough before us to warrant opinion or discussion as to the conduct of either of the parties in reference to the matters in controversy between them. What may be their respective rights, upon an equitable statement of the somewhat complicated deal ings which are now the subject matter of this litigation, can only be ascertained when the pleadings and proofs are perfected. All that is now decided or necessary to say is, that this ease, as now presented, comes within the general rule of chancery as above stated, and the result is that already indicated, with an award of costs to respondents on this appeal.-

Decree unanimously affirmed.