Sheldon v. Weeks

By the Court, Edmonds, J.

The “ act to facilitate the determination of existing suits in the courts of this state,” passed April 12th, 1848, enacts that no rehearing shall take place at a general term, of an order made at a special term, unless the same involves the merits. (Laws of 1848, p. 566, § 7.) It has been considered quite doubtful whether a motion to dissolve an injunction so far involved the merits as to be the subject of an appeal, where the appeal was confined to matters affecting the merits only. But it seems now to be settled that it does ; or at least that it may; so that a motion to dissolve an injunction is not necessarily excluded from the operation of an appeal. There are cases, however, where such a motion would not involve the merits; and this, I think, is of that kind. The injunction extends to the assigned property, and is not confined to that which confessedly belonged to the debtor at the time of filing the bill. The debtor, in his answer, admitting the recovery of the judgment against him, the issuing of the execution and the return of nulla bona thereon, the injunction issued of course, as against him- As to the other defendants, the granting or dissolving the injunction decided nothing as to the rights of the parties. It merely provided for the preservation of the property in dispute, pending the litigation.

The motion for a receiver does not involve the merits, and therefore cannot be reheard. It was so held by the court of errors in Chapman v. Hammersley, (4 Wend. 173.) In that pase, pending a suit in chancery, the chancellor directed the property in dispute to be sold, and the money to be brought into court. On an appeal to the court of errors, that court unanimously held—Marcy, J. delivering the opinion—that the order made by the chancellor did not affect the merits, and therefore was not the subject of appeal. It was aside of the merits, and related only to the preservation of the property. The rights of the respective parties were not touched upon. That case was recognized in Rowley v. Van Benthuysen, (16 Wend. 376,) and is decisive of this motion.

Motion to rehear denied, with costs to be taxed.