Gilbert v. Arnold

RobiNSON, J., delivered the opinion of the Court. This cause was heard and submitted to the Court below, upon the demurrer to the bill of the complainants. It is ³⁵ insisted, however, on the part of the appellants, that the demurrer was withdrawn and answer filed, before the order was passed overruling the same and granting the writ of injunction. In the view we take of the case, this question is altogether immaterial.

The 102d section of Article 16, of the Code, provides that a party withdrawing a demurrer without leave of the Court, “ shall pay to the opposite party the sum of ten dollars and the costs thereof, and be in contempt until the said sum of money and costs are fully paid.” Now, if the demurrer was withdrawn, it was without leave of the Court, and the defendants became liable, not only for the fine and costs, but are declared to be in contempt until the same “ are fully paid.” Being thus in contempt of Court, they attempted to file their answer to the bill, and their right to do so, is the first question to be decided. It is laid down as a general rule, by Lord Chief BaroN Gilbert, that a party in contempt is never to be heard, by motion or otherwise, until he has fully purged his contempt and paid the costs. Gil. For.

Rom., 102; 1 Daniel’s Chan. Prac., 488. And in Lord Newman vs. Osbadiston, 2 Pro. P. C., 276, where a defendant was in contempt for not putting in his examination pursuant to an order of the Court, afterwards in order to avoid a writ of sequestration, moved that further process of contempt be stayed, upon his undertaking to pay in a week’s time, what should appear to be due the plaintifij but .the Court refused to allow him to make the motion until he had cleared the contempt.

It was also held in Hewitt vs. McCartney, 13 Vesey, 560, that a mortgagor, defendant to a bill of foreclosure, being in contempt, could not move under the statute of 7 George II, chapter 20, for a reference to the master, to take an account of the principal and interest due; other authorities might be cited if necessary, all affirming the general principle, that a party in contempt will not be heard by motion or otherwise, until he lias relieved himself of the contempt. ³⁶ We are of opinion, therefore, that the defendants being in contempt, by non-payment of the fine and costs imposed by the Code upon the withdrawal of the demurrer, had no right to file their answer, and that the Court committed no error in passing upon the bill and exhibits, without considering the answer which had been filed. It does appear, however, that the fine and costs were paid on the 20th of July, before the appeal was taken, and the answer will therefore be considered in so far as to entitle the defendants to the' right of appeal from the order granting the writ of injunction. The motion to dismiss the appeal must therefore be overruled. But it is insisted in the next place, that assuming all the averments in the;bill to be true, the complainants have a complete remedy at law for damages, and that no case is presented for the interference of a Court of Equity by writ of injunction.

The bill is filed by the Trustees of Goshen Meeting-house, and David W. Arnold and Gustavus W. Hobbs, in behalf of themselves as well as all the ministers and preachers of the Methodist Episcopal Church in the United States. It alleges that Ignatius Pigman, on the 14th of August, 1790, conveyed unto certain trustees and their successors, a lot of ground containing one acre of land, “ including a certain edifice built and set apart for Divine worship therein by a society of Christians, called Methodists.” That since the execution of said deed, for a period óf more than seventy years, the said “ meeting-house ” has been in the use and occupancy and under the control of the ministers and .preachers of said society, “a voluntary, unincorporated, religious association.” That , the trustees, complainants, are the regular successors of the trustees mentioned in the deed of trust, and that the said Arnold and Hobbs are the ministers and preachers duly appointed to have pastoral charge of said “ meeting-house; ” and that shortly after they had entered upon the