Rosset v. Greer , 3 W. Va. 1 ( 1868 )

Maxwell, J.

The first cause assigned as error is, that the court erred in dissolving the injunction at the March term, 1864, on motion of the defendants Greer and Ayres, on the day they filed their answers. It is claimed that a reasonable time should have been given the petitioner to establish by proof the allegations of his bill.

The answers of Greer and Ayres denied all the allegations of the bill charging fraud on which the injunction had been awarded.

It is the well settled practice of the courts of this State that, an injunction may be dissolved upon the filing of answers denying the equity of the bill, responsive to the allegations therein contained. There is no error then in the first cause assigned.

The court did not err in the second cause assigned as error, because it does appear in the final decree that the answer of "Wolf was substantially then filed if it had not been filed before.

The court did not err in refusing to reinstate the injunction at the May term, 1864, on motion of Eosset, as claimed in the third cause assigned as error, because there had been no depositions or other evidence filed in the cause after the injunction was dissolved at the March, term, nor any other cause shown why it should have been reinstated.

The fourth and fifth causes of error assigned are in substance the same.

It is claimed that the court erred in disposing of the cause upoii the “answer and demurrer” at the September term, 1866; that if the answer had been filed it was too late to admit the demurrer; that if the answer had not been filed it was error to give the defendant the benefit of it; that if the answer was not considered by the court it was error to have sustained the demurrer and dismissed the bill; that the order dismissing the bill is irregular and informal for not indicating whether it ivas predicated upon the answer or the demurrer.

There can be no error in disposing of the ease upon the “answer and demurrer.” The demurrer was filed before the answer. Although an answer be filed a demurrer may be filed also, and at any time before final decree, under the same restrictions that an answer might be filed. I think such is the fair construction of our statute. Basset’s administrator, &c., vs. Cunningham’s administrator, 7 Leigh, 402.

The answer, as I have before said, is properly before the court so as to give the defendant Wolf the benefit of it, so as to give him the benefit of everything contained in it, because there was no replication to it. I admit that if the answer was n*ot considered it would have been error to have dismissed the bill on the demurrer because the bill is in substance good and the demurrer was not well taken. I admit also that the order dismissing the bill is irregular and informal. The order would have been more regular and formal if it had shown that the demurrer was overruled and the hill dismissed on answer. But it can make no difference in substance and effect as to the form, hecause the hill was properly dismissed. It is claimed that the court erred in not continuing the case or suspending the decree to give the petitioner reasonable time in which to produce newly-discovered evidence.

The last decree rendered in the cause recites that “ the complainant having filed a petition under oath, in this cause, praying for time to procure newly-discovered evidence that he regarded material in the case and a rehearing of this cause, the court having considered the motion is of opinion that the same be overruled.”

There is an affidavit filed in the papers of the record bearing elate on the 24th day of September, 1866, the day on which the decree was rendered, which seems to be pretty well identified as the affidavit referred to in this order though it does not appear to be made a part of the record of the case in any other way. Eosset in this affidavit represented that during the term of court then pending, he had discovered evidence that he believed material to the issue in his cause-against "Wolf and others, then pending; that he had not discovered the same before, and since its discovery he had not had time to give notice to the parties to take the depositions. The affidavit prayed the court to allow affiant time to take' said evidence and file it in the cause before the order of dismissal is entered of record, and that a rehearing of the cause be allowed by the court, if depositions, alter they are taken, should disclose sufficient facts to change the liabilities of the parties. To treat this affidavit as the foundation for a continuance of the cause, to enable Eosset to take depositions and get in his newly-discovered evidence, it is not sufficient, because it does not show that he could not have discovered the evidence sooner by the use of due diligence, .nor does it disclose thé nature of the evidence so that it maybe seen whetheimt is material or not. As the foundation for a bill of review it is plainly insufficient for the same reasons. ' It seems to me that there is no error committed by the court in refusing to give time to get in this evidence.

Upon the whole case the decree complained of must be affirmed with damages and costs to the appellees.

The President concurred.'

Decree aeeirmed.