Smith v. Fitch , 1 Cl. Ch. 265 ( 1840 )

The Vice Chancellor.

The only plausible ground upon which the motion for the dissolution of the injunction is founded, is, that the bill does not shew upon its face that the complainants have exhausted their remedy at law, inasmuch as they have .not. set forth the residence of the defendant at the time of issuing their execution at law. The bill, it is true, in its commencement describes the residence of the defendant as being in Genesee county. But this, if it be deemed an averment at all, is only an averment that the defendant resided in that county at the time the bill was filed, which was in March, 1840. There is no averment as to the place of residence of the defendant when the execution was issued. Under the decision of the Chancellor in the case of Reed vs. Wheaton, 7 Paige, 663, I am constrained to allow this motion. In that case, and also in a case recently decided, (Gaylord vs. Hendrickson,) the Chancellor has determined that a creditor’s bill should aver that- the defendant was a resident of the county to which the execution was issued, at that time; and in the last case, has given the form of the averment. In the former case, too, he has said that a mere statement of the residence of the defendant in the commencement of the bill, is not a sufficient averment of residence, at the time of issuing the execution. These two cases certainly cover the question presen ted in this case, and upon their authority the injunction in this case must be dissolved.

After coming to this result, it is next necessary to inquire what effect this conclusion has upon the attachment. It now appears that the injunction was improperly issued in the first instance; but still it was regular, and, as process, carried with it the full authority of the court, aud should have been obeyed. It is no excuse for the defendant that the injunction was improvidently issued, to save him wholly from the consequences of the contempt; but the circumstances may be taken into consideration in the amount of fine to be inflicted. This case is similar to that of Sullivan vs. Judah, 4 Paige, 444. The complainant has sustained no legal injury or damage by the act of the defendant; but still, by this act the defendant contemned the process of the court, and for that he must be punished by payment of the costs or such of the costs of the proceedings, as he would under other circumstances be compelled to pay.

These costs of these proceedings must be arranged as follows: the complainant must pay the defendant the costs of the motion to dissolve the injunction, also the costs of the demurrer to one of the interrogatories which was allowed. The defendant must pay the complainants the costs of the proceedings upon the attachment up to the time of the order of reference to a master to take proofs of the truth of the defendant’s answer. As to the proceedings upon the attachment subsequent to the reference, neither party is to have costs as against the other. The costs allowed to each party, are to be offset against each other; and upon the defendant’s paying the complainants the balance, (if any,) all farther proceedings upon the contempt are to be stayed. As the complainants propose to carry the question before the Chancellor again, the order for the dissolution of the injunction is not to be operative if the complainants file and perfect an appeal within fifteen days, until the decision upon such appeal; otherwise, to be operative after the expiration of fifteen days.