complainant to retain his injunction until his exceptions are disposed of, he must show some actual injury from the alleged impertinent matter.1 § 89. On a motion to dissolve an injunction after answer, the court will not examine exceptions, as to their merits, further than to ascertain that they are not frivolous.2 89 a. Where on a motion to dissolve the parties actually appear, and do not object the insufficiency of notice, the objection is waived.3 § 90. Laches, neglect or delay will be ground for the dissolving of an injunction. Thus, under peculiar circumstances, and after a lapse of sixteen years, an injunction to stay proceedings at law will be dissolved, irrespective of the merits of the questions at issue. So, in a patent case, a temporary injunction will be dissolved at the next term, if the law case, directed by the court to try the validity of the complainant's patent, is not brought before that time. So an agreement was made, and a large part of the property embraced in it was conveyed. Three years afterwards, the vendees filed a bill for a conveyance of the rest, and a year after that the vendor prayed for an injunction to restrain the vendees from conveying, on the ground that the agreement was obtained by fraud, which it appeared he knew of at the time. The answer denied the equity of the vendor's bill. Held, the vendor was guilty of great laches, and so the injunction was dissolved with costs to the respondent.' So an injunction will be dissolved on motion, if a copy of the bill on which it was obtained is not served upon the defendant within a reasonable time after his appearance. On the other hand, delay may prevent the dissolving of an injunction. The court will not dissolve an injunction on enforcement of an important right, unless the party enjoined use due diligence in getting the question before the court.' § 90 a. The neglect of the plaintiff, on serving an injunction, to serve a subpoena to appear and answer on some of the defendants, is no ground for an application, by a defendant on whom the subpoena has been served, to dissolve the injunction. (a) And the rule of dissolving does not apply, where process is regularly sued out, but irregularly served, and the complainant uses due diligence in suing out new process.3 § 91. Where a plaintiff, upon obtaining an injunction, neglected to serve that and the subpoena upon one of the defendants, such defendant may nevertheless enter an appearance, and join with the other in an application to dissolve the injunction. § 92. An injunction may be dissolved, though all the defendants, who could and ought to answer, have not done so, if the plaintiff does not proceed in his cause with reasonable diligence. As where an injunction had been granted to stay a suit at law, and some of the defendants had answered, but the plaintiff had neglected for nine months to take any steps to compel the others to appear and answer, or to have the bill taken pro confesso against them; or if the subpoena is not served and returned at the term to which it is made returnable, or at least an attempt made to have it served; and this, although the suit is against the sheriff, and there is no coroner in the county. In such case it may be served by 26. Baird v. Moses, 21 Geo. 249. ? Seebor v. Hess, 5 Paige, 85. 4 Waffle v. Vanderheyden, 8 Paige, 45. (a) In Kentucky, upon an injunction being dissolved, and the bill continued as an original, if the complainant neglects to take out commissions or subpoena witnesses, the suit is discontinued at the second term after the injunction is dissolved. Bizzel v. Binke, Mar. 61. any one; but the return must be made under oath, and rule taken upon the defendant to answer, &c.1 93. But where the situation of the cause is such that the plaintiff cannot proceed in it, delay is no cause for dissolving an injunction. (a) And an injunction will not be dissolved for laches in prosecution, when the cause has been set down by the opposite party to be heard the next term.3 § 94. An injunction ought not to be dissolved upon an answer not made under oath, and where evidence of the truth of the facts was not furnished. Though the plaintiff has waived an answer on oath, the answer must still be sworn to in order to dissolve an injunction." And the defendant may answer under oath for that purpose, with the same effect as in case of other sworn answers. If the plaintiff waives an answer on oath from all the defendants, and one of them. answers on oath, denying the whole equity of the bill; he may move to dissolve the injunction upon his answer, though the other has put in an answer not under oath.' 95. An injunction should not be dissolved for the reason that the bill was not sworn to, where the effect of the dissolution would be to put the property out of the power of the court.s 96. A motion to dissolve an injunction may be taken and disposed of at any time before the cause is regularly Depeyster v. Graves, 2 John. Ch. 148; West v. Smith, 1 Green Ch. 309; Hightour v. Rush, 2 Hay. 361. * Schermerhorn v. Merrill, 1 Barb. 511. 3 Smith v. Cooper, 21 Geo. 359. 4 Gray v. McCance, 11 Ill. 325. 5 Dougrey v. Topping, 4 Paige, 94. 6 Manchester v. Dey, 6 Paige, 295. 7 Schermerhorn v. Merrill, 1 Barb. 511. 8 Schermehorn v. L'Espenasse, 2 Dal. 360. (a) An injunction will not be dissolved, because it was obtained more than five months after the judgment enjoined was rendered. Pugh v. Maer, 4 Hawks, 362. reached on the docket, or called for trial,' more especially after answer. And, if a bill is wanting in equity, the Chancellor may dissolve the injunction,in vacation, after the coming in of the answer, notwithstanding all its allegations are therein admitted. A party moving to dissolve an injunc tion in vacation need not wait to file his answer in court, or at the rules, but may put in his answer and have the benefit of it at the hearing of the motion.‘(a) 97. It is error to perpetuate an injunction against a party without having him before the court. And upon a motion to dissolve an injunction, upon the coming in of the answer, it is not proper to decree that the injunction be made perpetual, in whole or in part. So an injunction will only be perpetuated as issued for some legal cause stated in the petition.7 $98. Injunctions are sometimes revived after dissolution on the merits. Or awarded afresh on special motion, or new facts stated in an amended or supplemental bill, or on proof taken. A court of chancery is always open to reinstate, ast well as to grant, an injunction. If the dissolution of an injunction be improperly obtained, it will be revived.10 And where an injunction is awarded until the coming in of the Huston v. Berry, 3 Tex. 235. 336. McReynolds v. Harshaw, 2 Ired. Ch. 29. 7 Pitman v. Robicheau, 14 La. An. 108. 8 Tucker v. Carpenter, Hemp. 440. 9 Radford v. Innes, 1 Hen. & M. 7. 10 Billingslea v. Gilbert, 1 Bland, 566. (a) Under the statute of Alabama, authorizing a motion to dissolve an injunction in vacation, upon the coming in of the answer, the Chancellor may hear the motion and make the decree at a place out of his division. The course of practice, in appealing from such a decree, is precisely the same as if the decree were made in term time. Griffin v. Branch, &c., 9 Ala. 201. answer, though dissolved of course on the answer's being filed, without motion, the plaintiff may move to reinstate it.'(a) § 99. It is no ground to dissolve an injunction in one State, that an injunction has issued from a court of another, and that the defendant has given security to perform the decree.'(6) § 100. If a party, who has unsuccessfully applied for an injunction, afterwards apply to another court of concurrent jurisdiction, for the same purpose, upon the same grounds, without disclosing his former application, relief may be extended to the other party in a summary way upon his petition; but where the equities of the two applications are different, the temporary injunction should not be dissolved. without answer from the defendant, or, at least, notice to the complainant; and where the defendant had neglected to answer for a long time, during which, in the ordinary course of practice, proceedings pending in a court of common law would have been settled, and the matter out of which the proceedings in equity arose, determined in favor of one of the parties, it was held an additional reason for refusing to interfere before answer.3 1 Beal v. Gibson, 4 Hen. & M. 481. 2 McKim v. Fulton, 1 Overton, 238. 3 Wood v. Bruce, 9 Gill & J. 215; Lowry v. McGee, 5 Yerg. 238. (a) In such case, in Virginia, the bill is to be dismissed, unless the injunction be reinstated, or unless cause be shown against it at the term ensuing the coming in of the answer. 4 Hen. & M. 481. After an injunction has been dissolved, a motion to have it reinstated, on new evidence, is in the nature of an original application, and, if refused, the complainant may apply to one of the judges of the Court of Appeals. Gilliam v. Allen, 1 Rand. 414. (b) The pendency of a bill in the County Court of Virginia, after the dissolution of the injunction, is no bar to the complainant's obtaining another injunction in the Superior Court of Chancery. Roberts v. Jordans, 3 Munf. 488. |