Upload
others
View
10
Download
0
Embed Size (px)
Citation preview
170 E(~UITY J>LEADJNC~ AND PRACTICE.
LECTURE XIV.
PETITIONS.
Petitions are entitled in the court and cause and
addressed in the same manner as a bill, when they are
made in a cause already pending.
The petition should briefly and clearly set forth the
particulars of the case and conclndc with praying the con rt to grant the order desired '' or such other and
further relief as may be agreeable to equity and good
conscience." The petition must be signed and sworn
to by the petitioner and also signed by the counsel.
Matter of Christie, 5 Paige 242.
When a person not a party to the original bill has
an interest by way of title, lien or otherwise in the
property which forms the subject-matter of the snit. and such interest is liable to be affected by the pro
ceedings, he may by petition apply to the court for·
leave to intervene for the protection of his rights, and
such leave will be granted when the cause exists.
When leave is graute<l the party innst forthwith, or ·
within such time as the court determinei::, file his peti
tion in the cause setting forth his righ ts and praying
for the relief sought, and give notice of the filing
thereof to the other parties to the cause.
Freemn.n v. Howe, 24 How. 450; Stewart v. Durham , 115 U.S. 61; Gumbel v. Pitkin, 124 U. S. 131-143.
EQUITY PLEADINU- AND PRAUTlUK l 71
Petitions are noticed, and heard in the same man
ner as motions. ORDERS.
Orders are either common, special or by consent.
A common order is one that the party ia en titled as of course and is made without notice to the opposite
party. A special order is one made by the eourt npon
special application, either ex parte or upon notice.
An order by consen t is bne made npon ~tipnlation of the parties or their solici tor8.
All common orders and orders by cousent of the
parties, may be entered in the com1non rnle book in the register's office, at the peril of the party taking such order. The day on which the order is entered must be noted in the entry. All special orders made by the cou rt m nst be entered in the recor<l of the pro
ceed_ings of the con rt. When an order is entered by consent, the consent must be in writing signed by the parties or their solicitors and filecl in the cause. •
Hammond v. Place, liar. Cb. 438: Crone v. Angell, 14 Micll. 339; l\1ich. Rules 24.
Orders for injunctions, anJ all other special or<lers, must be entered with the register before process . issues.
Hoffman v. Treadwell, 5 Paige 82; Skinner v. Dayton , 2 Johns. Ch. 226.
It frequently happens that the entry of a common
order is not made at the proper time. In such a case, if no great length of time has in terveneu, a motion of
172 EC.~UITY PLEADING AND PRAC'I'IOE.
cause may be made to the court to enter the order
nunc _R'l'O tune : but after a considerable length of time, there ought to be notice of the motion.
Williamson v. Henshaw, 1 Dick. 129.
Neither party can have a11y benefit from a decision of the con rt n ntil the order thereon is drawn up and
J.>erfected. When the order granted is special in its
provisions the party in whose favor it is granted
should submit a copy to , the adverse party that he
inay snbmit amendments thereto if he desired. The
draft and the amendments are then given to the reg
ister t hat the order may be settled by bitn and
entered. If the register is in doubt as to the decision
of t he co urt~ be is, in such a case, to apply to the cou rt to settle the order.
W'bitney v. Belden, 4 Paige 14.0; Earl of Fingal v. Blake, 3 :.Molloy 50.
SERVI CE OF ORDERS.
Not all orders need be served, and whether or not
an order m nst be served depends usuallJ upon the
f orrn of the order. Special orders obtained ex parte, usually provide that the act designated shall be per
formed by the opposite party within the time specified after sen rice of the order. Bu t where a special order
is obtained upon notice the order usually provides
that the act shall be performed within the time desig
nated after entry of the order. The reason for this
d istinction is that )n the first instance the opposite
party has no personal knowledge of the order until
}l;QUI'l'Y PL lt;A IHN($ .\NI) l'RAOTIUE. 173
he is Hotitied, and i 11 tlic late1· case he ha. such noti<.:e, having had notice of the motion for the orde1·.
But in all cases as we ha\·e seen where it is intendou
to bring the party into contempt for not complying
with the ordm·, notice must be served npon hi1n per
sonally. The service in snch <'asc is made in the
same manner as notice of a decree, b.Y delivering to
him a. copy of the order and at the same time show
ing him a certified cop.Y of the original order under
the seal of the court.
& parte Gwynne, 12 V cs. 380; Cooper 282; Laton v. Seam au. 9 Paige 609; Young v. Goodson , 2 Russ. 255.
Wheu the party has appeared by solicitor, and it is
not desired to bring him into conten1pt, service of notice, when notice is necessary, n pon the solicitor is sufficient.
Stafford v. Brown, 4 Paige, 360-362.
ENFORCING ORDERS.
It is some times provided by statu te that orders for
the payment of 1noney may be e nforced by mean of
an execntiou running against the....._1w~~-rty of the defendant. At common law orders 0Qll're, in genera],
enforced by process of conte1upt. Upon motion, and
proof that an order ha<l been pe1·sonally served, for
the payment of costs f or instance, and that the order
had not been obeyed, attachment issued aud the defend
ant was committed to prison for contemp t.
Dani. Cbr. P. 1454.
174 gQlJl'l'Y PLEAnJNG AND PRAOTICK
MODIFYING AND DISCHARGING ORDERS.
It is a general rule that every order made in the
progr~sc, may for cause shown, be modified or reeei .. ·ed at any time before the final disposition of the snit.
Ashe v. Moore, 2 Mer. 383; Fanning v. Dunham, 4 Jouns. Ch. 35; I snaid v. Cazeaux, 1 Paige 39.
An order will not be vacated, however, except to permit the ])arty applying to secure rights that arc
meritorious. If he simply desires to delay a canse, or take ad vantage of some technical defence or objection ,
the court will allow the order to stand although the
party has excused himself from all fault.
Champlin v. Mayor of N. Y., 3 Paige 573; Townsend v. Townsend, 2 Paige 413; Hunt v. Wallis, 6 Paige 371.
INJUNCTIONS.
It is very frequently necessary for a court of equity
to r estrain a party from doing some particular act in ord er to prevent irreparable injury to another, or to
maintain the statu quo pending the determination of
the legal rights of the parties to the subject-matter ·in
litigation . This object is accomplished by the writ of
i njunction, a wri t of the greatest importance and of very frequent use especiaily in this country during
the past half centnry. W c can do no more than
mere1y to h1dicate the existence and purpose of the
writ, and refer the the student to the exhansti ve trea
ties on the su l>ject by Dr. High.
A writ of injnnctiou is a judicial process acting in
EQUl'I'Y PLEADING AND l'H.A.C'fIOJr.. 175
pe1•sonarn requiring the party to whom it is directed to
do or to refrain from doing some act therein specific
ally described. It is used both for the enforcernent of
a. right and the prevention of a wrong, but it must be
an actna1 right or a positive wrong, and the withho]d
i ng of the right or the doing of the wron~ must work
a positive injury to the person complaining, or the
court will not interfere .
.McDonogh v. Calloway, 'i Rob. La. 442; Goodrich v. Moore, 2 ~1inn. 49.
Injunctions arc either mandatm·y, commanding
something to be done, or preventive, forbidding the
doing of something. A mandatory injunction is
seldom issued and theu only upon the final hearing.
Robinson v. Byra.m,1 Bro. C. C. 588; Gale v. Abbott.,8Jur. N. S. 987; Worthington v. Green, 1 Md. Ch. 97: Rogers v. Hailroad, 5 C. E. Green, 379.
With reference to their duration injunctions are
either interlocutory or perpetual. Interlocutory in
junctions are issued at any time during the progress
of the suit, usually at the filing of the bill, to continue
until the coming in of the answer, or the hearing, or
the further order of the court. A perpetual injunc
tion is never granted except at the final hearing and is
usually a part of the decree.
Chapman v. Harrison, 4 Bland 336.
The sole object of an interlocutory injunction is to
preserve the present situation of the parties, and
therefore it will go no further than is necessary to
preserve all the rights in issue between them in
176 F.!(!UI'lT PLI~A DINH AND PRACTTCK
statit q-uo. They are divided into two classes, cmnmon and special.
A common injunction is one that issues to aid the
court in g ranting the ultimate relief asked, which is
sometli ing differerrt fro m the in junction itself, while a special injunction is issned to p revent irreparable
injury and the obtaining·of which i · the sole or prin
cipal object and pnrposc of the snit.
Purnell v. Daniel, Ired. Eq. 9; Troy v. ~orman, 2 Jones Eq. 318; Peterson v. Mathis, 3 J ones Eq. 31.
An injunct ion becomes operative from the time the
party to whom it io di rected has actual notice. I t is
not necessary that he should be actually served \vith
the writ and therefore it may be served out ,ide the
j urisdiction of the cour t. Ramsdall v. Craighill, 9 Ohio 197; Little v. Price, 1 .Md. Uh.
182; Milne v. Van Buskerk, 9 Iowa 558; Osborne v. T ennant, 14 Yes. 13G.
A perpetual iujunction is ouc that ]s issued under a
final decree as an interlocntory injnnction which is
made perpetual by the fi nal decree. By i ts terms the
defendant is forever inhi bited f rom doing certaiu acts,
or m aking certain specific claims therein set forth,
which wonl<l be contrary to equity and good con
science. Such an injunction will issue whenever it is
necessary to protect the rights of the complainant. Bushnell v. Hartford, 4 .Johns. Oh. 301; Caruthers v. Harts
field, 3 Yerg. 35G: Kenson v. Kenson, 1 Ribb. 184.
Injunctions in this state may be granted by a circuit
court commissioner. Mich. Rule 112; see also 17, 21, 2:J, 109.
EQUITY PLEATHNl: .\NI> PRA.CTICJ:i:. 177
Special injunction are not granted in the United States Court except upon notice to the op1 osite party, and they continue in force until the next term of the court, or until the further order of the court.
U.S. Rule 55. Revised St. ~§71 , 719, 720; Parker v. Judges, 12 Wheaton 561.
WRIT F NE EXEA.T.
A writ of ne exeat is the process of the court issuing under its seal to prevent a person who is a party to a suit fro1n leaving the jurisdiction of the court. It is resorted to for the purpose of compelling a defendant to give bail_ conditioned that he will do and perfonn the decree of the court.
Gilbert v. Colt, Hopk. 496; De Riva:finoli v. Con etti, 4 Paige, 264; Gleason v. Bisby, 1 Clarke, 551.
The statutes of the United State provide that when a snit in equit.Y is commenced, and satisfactory proof is made to the circuit court, or to the circuit justice or jndge, that the defendant de igns quickly to depart . from the United States; that there is due from him a sum certain or capable of reduction to a certainty · that complainant has no ufficient lecral redre s, and that irreparable injury or a denial of justice will be caused to complainant if the defendant , o departs, such court or jndge may order the issuance of a writ of ne exeat, upon which the mar hal arrests the defendant and keeps him in custody unless he gives security to abide the order and decree of the court.
Revised Statutes§ 717; U. S. Rule 21.
The writ may be applied for at any stage of the 12
178 EQUITY PLEA.DING AND Pl~ACTICE.
proceedings after, but not before, the filing of the bill of corn plaint. ·
Ex pr. Ilrumkcr, 3 P. Wms. 312: Dunham v. Jackson, 1 Paige 62!).
The application for the writ may be made em parte. The a pp! ication is fonnclecl n pon atfida vit or petition, and, unlike the writ of injunction, it need not be prayed for in the bill. The writ may l>c allowed by the same officers who are authorized to allow writs of injunction, and the office1· making the allowance directs in what amount the defendant shall give bail.
Elliott v. Sinclair, J ac. 545; Gleason v. Bishy. 1 Clarke 5'51; Brehm v. 'Vootl, 1 Turner & Russ. 332; .McNamara v. Dwyer, 7 Paige 239.
The writ commands the sheriff to have the defendant personall.Y to come before him and give a bond in t11e penal snm endorsed thereon, tl1at he will not go, or attempt to go, beyond the jurisdiction of the court -at common law beyond the four seas-and in
default of his giving snch bond that he commit him to
pnson. Gibert v. Colt, 1 Hopk. 500; Hice v. Hale, 5 Cash. 239; Mich.
Rule 17.
RECEIVERS.
A receiver is a snitable person appointed to take charge of property which is in volved in the suit, when for any re~son, the conl't regards the parties to the suit not to be the proper persons to have the custody or management of such property. The appointment of a receiver is discretionary with the court. When
EQUITY PLEADING AND PltACTICE. 170
appointed he is regarded as an officer acting under the orders of the court. The power of appointment is usually called into action either to prevent fraud or save property in litigation from material injury.
lo re Receivers' Globe Ins. Co. 6 Paige 102; Baker v. Barkies, 42 Ill. 79; Vorhill v. Hynson, 26 Mil. 83, 92; Mich. Rules, 104, 106, 107, 108; U. S. C. C. Rules 8, 9, 11.
When the application for a rccci v-cr is made d nring
the pendcuey of tl1e suit and before a decree, there mnst be a foundation laid for the application in the
bill, but. the biJl need not contain a prayer for a receiver. The application is n1aclc upon motion,
notice of which must be served npon the opposite party, unless he has absconded or has concealccl him
self to avoid service.
Dowling v. Hudson, 14 Beav. 42:3, 42!; Pitcher v. Hilliar, 2 Dick. 580.