Zoll v. Campbell , 3 W. Va. 226 ( 1869 )

Maxwell, J.

The appellants assign two causes of error in their petition, the first of which is “that because the bill of complainant filed by petitioners was also a bill for a discovery, and none of its material allegations were denied by the defendants, and should, therefore, have been considered by the court as proved. If there were sufficient grounds for granting the injunction, which cannot be doubted, the same should have been perpetuated upon the papers as presented to the court.” If it could have been necessary for the appellants to have filed a bill of discovery7 to have enabled them to get at the justice of their case at law such bill should have been filed while the case at law vras pending, or some very good reasoii should be assigned why it was not done. Faulkner’s administrator vs. Harwood, 6 Rand., 125. The bill was not filed while the suit at law was pending, nor is there any reason wlietever assigned why it was not done.

The second ground assigned is that it was error to dissolve the injunction'upon a bill of discovery until Campbell, who was. especially cognizant of the complainant’s equities and from whom the discovery was especially required, had answered the complainant’s bill.

There is nothing charged in the bill to entitle the complainants to file their bill of discovery, as before stated, and no ground whatever charged to sustain the injunction,,so that there could be no error in dissolving the injunction without the answer of Campbell.

The decree or order complained of will have to be affirmed, with damages and costs to the appellees.

The remaining judges concurred.

Order affirmed.