Gray v. Montgomery

17 Iowa 66

• Court: Supreme Court of Iowa
• Decided: October 6, 1864
• Status: Published

Opinion

WRIGHT, Oh. J.

—Plaintiffs, as assignees of one Taylor, were the owners of a mortgage, upon certain timber land, made by defendants. The object of this proceeding is to restrain the removal of certain cord wood and the cutting of other timber on said land, the cord wood being claimed by the wife nnder a bill of sale, subsequent to the plaintiffs’ moi’tgage, to secure a debt contracted before that time. On the bearing the injunction was dissolved as to the wife (Catherine Montgomery), and plaintiffs appeal.

1. Injuction: record. If satisfied that all of the affidavits or evidence, upon which the court below acted in disposing of the motion to dissolve, were before us, we should very strongly incline to the opinion that there was error in the proceedings, and that the decree below should he reversed. This nowhere appears, however, either from the journal entry, a bill of exceptions, the certificate of the clerk or otherwise, and we must as a consequence presume that the court below was justified, from a sufficient showing, in making the order that it did. (Van Orman v. Spoffard, Clarke & Co., 16 Iowa, 186; Anderson v. Easton & Son, Id., 56, and cases there cited.

As to the time of taking up said motion, we only remark, that there is nothing to show that the court below abused its discretion in the premises. "We cannot say from the showing made, that the papers were lost or mislaid, or that any other sufficient excuse was shown by appellants for not proceeding with the hearing at the time ordered by the court. After answering, appellees could move to dissolve, and were entitled to be heard thereon at any time, unless good ground for postponement .thereof was shown by the opposite party.

Affirmed.