Webster v. Hardisty

Miller, J., delivered the opinion of this Court. Where a motion to dissolve is heard upon bill and answer, the responsive allegations of the latter must be taken to be true, and if the equity of the bill is sworn away by the answer, the injunction must be dissolved. It is insisted however that this case comes within the rule stated in Alex’s. Ch.

Prac., 87, ⁵⁹⁷ and in Lynch vs. Colegate, 2 H. & J., 34, by Chancellor Hanson, that “whenever, on motion to dissolve, it appears from the answer that the complainant was entitted to an injunction at the time of obtaining it, the same shall continue until final hearing, or further order, unless the defendant admits every thing alleged in the bill, on account of which the injunction was obtained.” We do not find that this rule has been sanctioned by any decision of the appellate Court, but we need not decide upon its correctness, because it does not appear from the answer in this ease that the complainants were entitled to the injunction when it was obtained. The case is briefly this: Webster, then Sheriff of Prince George’s county, appointed Hardisty, his deputy, and the latter gave to the former a bond dated the 19th. of February, 1858, in the penalty of $5,000, in which the other appellees were sureties, conditioned for the faithful performance of the duties of the office of Deputy Sheriff. Suit was instituted on this bond by Webster against all the obligors therein, and on the 9th of November, 1860, a judgment was recovered “ for such sum as C. C. Magruder and Samuel B. Hance should say was due.” On the 18th of September, 1862, these referees filed an award directing the clerk to enter a judgment for the penalty of the bond to be released on payment of $1,230.60, with interest from the 24th of July, 1862, and costs, “it being the amount found due by the undersigned referees after having given due notice to the defendants in the above cause,” and the judgment was entered accordingly. Upon the allegations of the bill an injunction was granted to restrain execution of this judgment.

The answer admits, as the bill charges, that the judgment was originally entered in the form stated, for the purpose of allowing Hardisty an opportunity to account to Webster, concerning divers matters of official account between them, so that the whole matters in dispute should be legally and properly adjusted, according to the condition of the bond on which the judgment was obtained, and that all proper credits to which Hardisty was entitled should be allowed, but denies that the referees made their award without notice ⁵⁹⁸ to the defendants as charged, but, on the contrary, avers that prior to filing their award they made several appointments for the purpose of allowing Hardisty to produce evidence of the credits to which he might be entitled, and sent by mail, properly directed, written notices to him and the other defendants, informing each of them, at least ten days beforehand, of the time, place and purpose of meeting, and notifying and requesting each of them to attend, but they failed to pay any attention to these notices; and after repeated notices of this kind and appointments, they made a final one giving the same notice, and upon a like failure of either of the defendants to attend, the referees met and made their award from the papers then before them. The answer then admits the .specific credits, amounting to $275, charged in the bill, (and receipts for which