Heck v. Vollmer

Alvey, J., delivered the opinion of the court. The appeal was taken in this case, as we suppose, though it does not very distinctly appear,.from the order dissolving the injunction. It is not contended, on this appeal, that the answer of Vollmer does not swear away the equity of the bill, nor that it is in any respect insufficient in its averments to justify the dissolution of the injunction. But it is contended, that because there were two other defendants to the bill, who had not answered, the court below was in error in dissolving the injunction before their answers were filed.

As a general rule, it is no doubt true, that where there are several defendants to the bill, a motion to dissolve the injunction should not be heard until they have all answered. This is so where the injunction has been properly granted in the first instance; for it is competent to the parties affected by the injunction to come in at once, and before answer, and move to dissolve upon the insufficiency of the grounds disclosed by the bill. Minturn v. Seymour, 4 John. Ch. 173; Poor v. Carlton, 3 Sum. 70 .

But this general rule, requiring the answers of all the defendants to be in before motion to dissolve, has exceptions, and is subject to discretion' and modification, according to the circumstances of the case; as where those not answering are mere formal parties, or are infants, or non-residents, and whose answers cannot be material in regard to the facts on which the injunction is founded ; there the answers of such parties will not be required as a pre-requisite to hearing the motion. ⁵¹⁰ *Where all, or any particular number, of the defendants are implicated in the same charge, and that charge forms the material ground for sustaining the injunction, there the answers of all, or as many as may be so implicated, should be required before dissolving the injunction, unless for some special reasons shown to the contrary. But if the defendant against whom the gravamen of the charges of the bill rests has fully answered, there can be no good reason why the injunction should not be dissolved, although there be other defendants who have not answered. Depeyster v. Graves, 2 John. Ch. 148; Vliet v. Lowmason, 1 Green, Ch. 404.

The general rule an$ its exceptions, were recognized and well stated, by the late Chancellor Bland, in Jones v. Magill, 1 Bland, 190 , 193; and the practice in this State, in conformity thereto, may be regarded as well established. Heck, the husband of the appellant, and the judgment debtor in the execution, though made a party defendant, was not embraced in the injunction, and we may readily suppose that he was not particularly anxious to remove the restraint imposed by it. Both he and the sheriff, so far as the real merits, and the questions in controversy are concerned, are formal parties. And the answer of neither of them could be invoked by the appellant to sustain the injunction as against