Hinson v. Ralston

Mr. Justice Waterman

delivered the opinion ‘of the court.

While appellant by no means concedes that an in junetion should, at any time, have been issued, his principal complaint is that the court refused to hear or consider the answer or affidavits filed by him, but issued the two injunctions without considering his reply to the bill or hearing what he had to say in opposition to the making of either order.

It is a maxim of the law that no one shall be condemned unheard; but the kind and extent of hearing a party is, upon an interlocutory motion, entitled to, seems to be a matter largely in the discretion of the court.

In chancery, orders and decrees must be supported by the record; but one who comes to this court alleging error, must point out wherein the record fails to sustain the action of the court appealed from.

An appeal is to be tried by the record as it stood when the appeal was taken and not by what it was a day before.

The first injunction may have been erroneously granted upon a bill containing no prayer for an injunction, but before an appeal was taken from this injunctional order, the complainant, by leave of court, amended his bill in this regard.

Each of the injunctions was not merely temporary, but for a short period—thirty days. The second order was upon the recommendation' of the master before whom the application for an injunction had been referred, as well as the cause itself, to take testimony and report his conclusions thereon.

The situation presented to the chancellor was unique. An election was about to be held; either party, if permitted to vote the disputed stock, would largely control the choice of directors. The court had not time to hear the bill, answer, affidavits in support of each, and arguments of counsel, before the election, and therefore, in effect, enjoined complainant and defendant from voting..

Ihe court asked counsel what harm could come from such action. Injunctions are not granted because they will do no harm. He who asks 'for an order of court must show that he is entitled thereto.

It is questionable, if, under the allegations of the bill, either complainant or defendant had, after the ninety days mentioned in the first contract, any right to maintain an action thereunder; a contract that may at any time be canceled by either party is an agreement of doubtful enforceability.

Neither party, however, seems to have so understood it. Appellant brought suit for the price of the stock he had agreed to sell, and appellee to compel its transfer.

Each party submitted to the court for hearing the motions for and objections to the respective orders. The comments of the Supreme Court in Blair v. Beading, 99 Ill. 600-610, are therefore not applicable to this situation.

Upon bill and answer, it seems as if the injunctions ought not to have been granted, but bill and answer were supported by affidavits; and none of these is abstracted.

Each injunctional order has expired; the questions presented to this court by these appellees are in this controversy of consequence only as regards costs.

The question is not so much whether the court gave to defendant such patient hearing and consideration as it ought, but rather, were either of its orders so erroneous that this court will now set it aside.

The character of the orders, as to time of duration as well as the circumstances under which each was made, is to be considered.

If either of these orders had been for an indefinite period, a different question would have been presented.

The defendant, at the filing of the bill, had pending a suit wherein he affirmed the sale of this stock and sought to recover payment therefor, and, so far as appears, such suit was pending at the time each of the injunctional orders was made. As to this the defendant merely says that subsequent to the filing of the bill he instructed his attorneys to dismiss that suit.

It is to be regretted that judicial action is ever hastily taken, or without full and patient hearing of the parties thereto, but something must be left to the discretion of the nisi priris judge. Ordinarily, when a trial court in the decision of any question renders a judgment or makes an order proforma, an appellate court, in reviewing the same, will order the judgment to be rendered or the order made which should have been rendered or made in the first instance. Manhattan, Alma & Burlingame Bd. Co. v. Keeler, 32 Kan. 163. We perceive no intention to treat the complainant unfairly; all that the court had before it, whether considered or not, is not abstracted for our examination.

The court stated to counsel for appellant that he did not desire to hear a motion of this character upon affidavits. The court did not state that he had no knowledge of the contents of bill, answer or affidavits.

The court, as before stated, granted injunctions, each for thirty days, because of what seemed -to it emergencies calling for such action.

We are not prepared, upon the presentation made to us, to say that it erred in so doing, and that such orders must, after they have expired, be reversed.

The appeals will therefore be dismissed.