Linn v. Wheeler ( 1870 )

The Chancellor.

The Injunction in this case is against O. H. Wheeler, and his son O. II. Wheeler, junior, who are the only defendants. It is to restrain them from receiving a sum of money in the hands of Runyon and Leonard, who, as their attorneys-at-law, have collected it for thorn, and from permitting it to be paid to any one for them or on their behalf. The defendants have not answered, or applied to dissolve or modify the injunction.

The application is made by Bryant and Co., who claim to be creditors of C. H. Wheeler, junior, and -to hold an order of C. II. Wheeler and Son, both defendants, on Runyon and Leonard, for the amount of this debt, to be paid out of the money collected by them. This order is dated and was presented to Runyon and Leonard before the injunction. The indebtedness to Bryant and Co., and the order to them are not stated in the bill, and as there is no answer, are shown by affidavits to which no objections is made by the complainants, who rebut them by a counter affidavit.

No one but a party to a suit can make any motion in it, except for the purpose of being made a party. The defendants only are enjoined. If they do not wish to be free from the injunction no one else can ask it for them. If it needs further action on the part of the defendants to authorize their attorneys to pay the money to Bryant and Co., the dissolution alone would be of no use to Bryant and Co. If the defendants would authorize the money to be paid, they would apply for the dissolution or permit it to be applied for in their name.

If, on the other hand, Bryant and Go. have, as they claim? an order given and signed in good faith before the injunction, which in effect assigns these moneys or any part thereof to them, especially if accepted by these attorneys, they have their remedy against them, and Runyon and Leonard would be warranted and compelled to pay these moneys to them, and they would not pay them as the attorneys of Wheeler and Son, but by virtue of an assignment by which the moneys are claimed, not under, but adversely to them. If the moneys are not so assigned, the injunction ought not to be dissolved, except for want of equity appearing either on the face of the bill or by the denials of the answer.

The motion must be denied.