Anderson v. Ellington

2 Va. 16

• Court: Supreme Court of Virginia
• Decided: September 15, 1807
• Status: Published

Opinion

By the Chancellor.

By the act of assembly

(a) it is declared, that in dll cases hereafter, where any injunction shall be wholly dissolved, the bill of the complainant shall stand dismissed of course, with costs, unless sufficient cause is shéwñ, against such dismission, at the next term, where the same shall be in the District Courts Of Chancery. In this case no cause was shewn, and the bill Was, of course, dismissed Under the law; the Cleár and obviOus intention of which Wás, to keep the docket of the Court clear of such cases, without taking up the timé of the Court to examine them a seCOnd time, unless, at the next term, the plaintiff, being dissatisfied with the dissolution, could shew cause tó the contrarybut, as no cause Was shewn in this case, it was presumed the plaintiffs were satisfied, and meant to abandon the prosecution of their suit: the defendants had a right so to consider it: and now to allow the plaintiffs an appeal Would be to allow them a possible advantage from their own neglect, to the injury, possibly, of the defendant's and against the obvious intention of the legislature. The case has not been examined since the injunction was dissolved: the plaintiffs may have taken new testimony'; and they máy have filed it; And yet failed to shew cause agaihst the dismission With a view tó an appeal, the granting which, under such circumstances, would be to deprive the defendants of an equal chance to put themselves in a better condition for an appellate Court, whose decision maybe given upon a new view of the case, not decided upon by the Court of Chancery. The Chancellor is not to be under-! stood as saying, that such has been the conduct of the plaintiffs in this case; but that to allow appeals in such eases, would be to adopt a rule, which might subject him to such impositions, and which he should carefully avoid* If then a party, whose injunction has been dissolved, means to appeal, let him carry on his suit, in the usual course of the Court, to a final hearing, when it will be the duty of the Court to examine the record again, which is never done in a dismission under the act.

Appeal denied: — but the plaintiffs may move, at the next term, upon notice to the adverse party, to set aside the dismission, when it may, or may not be done, as the case may be.

Sess. Acts of 1803, p. 82. Code, 2 vol. ch. 29. sect. 3. p. 29.