Grimm v. Grimm ( 1851 )

By the Court. Ingraham, First J.

Where an injunction is issued by order of the court, on a motion of which the party enjoined has notice, and is violated by him, he will not, on an appeal from an order granting an attachment for such disobedience of the injunction, review the propriety of issuing the injunction in the first instance. If the order containing the injunction was erroneous, the defendant should have appealed from it. By submitting to that order as made, he was bound to obey it, and it is too late now on this appeal to go back to the original motion to inquire into the merits of it.

A different rule may have prevailed when the injunction was granted by a master in chancery. In such cases, when the motion was made to the court for an attachment, they would examine into the propriety of the injunction, but where the injunction is granted on a motion made upon notice, the party should then make his objection.

The defendant appears to have acted by the advice of his counsel, and if he has been misled by it, he should be allowed to remedy the evil by complying, within reasonable time, with the order ; and, under the circumstances, I think the order appealed from should be so far modified as to permit the defendant, within ten days, to give the security as required by that order, or in default thereof, that the order appealed from be affirmed. The defendant, in either ease, to pay ten dollars costs of this appeal.

Ordered accordingly.