Montgomery Water Power Co. v. Chapman

U.S. Circuit Court for the District of Rhode Island

Montgomery Water Power Co. v. Chapman

128 F. 197, 1904 U.S. App. LEXIS 4676

CourtU.S. Circuit Court for the District of Rhode Island

DecidedFebruary 9, 1904

DocketNo. 2,650

StatusPublished

This text of 128 F. 197 (Montgomery Water Power Co. v. Chapman) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Montgomery Water Power Co. v. Chapman, 128 F. 197, 1904 U.S. App. LEXIS 4676 (circtdri 1904).

Pincite

Opinion

BROWN, District Judge.

The complainant seeks a preliminary injunction to restrain the defendants from enforcing their judgment of $53,000 and interest against the complainant. The validity of this judgment is not disputed; but the complainant in its bill alleges that it has begun an action at law against the defendants for breach of contract, upon which it expects to recover upwards of $117,000 damages for breach of contract, with interest. The ad damnum in the action at law is $150,000. The bill in equity alleges insolvency of the defendants, and that the amount of their property is insufficient to satisfy such judgment as the complainant expects to recover against them.

It appears, however, that the complainant has a valid lien by attachment of real estate, valued by the assessors of taxes at $92,250, unin-cumbered except by a mortgage of $1,500. This real estate is valued by an expert at $151,291. The complainant has also the defendants’ bond for $50,000, with the Fidelity & Deposit Company of Maryland as surety, as security for the performance of their contract with the complainant. Upon a conservative view of the value of the real es-[198]*198táte1 attached, it appears that, by its .attachment liens together with the .bond, the complainant has security to the full amount of the ad dam- • num in its writ. Therefore, if we disregard the defendants’ affidavits as to the complainant’s exaggeration of its claims for damages, and assume that the damages are as set forth in th$ bill, there is still no ground for equitable interference.

It remqins to consider what effect should be given to the affidavit of compláinant’s counsel that it is proposed to apply for an increase of the ad damnum in its action at law, and to claim the amount of the defendants’ judgment as additional damages for breach of contract. It is contended that, in such event, the complainant would expect to recover upwards of $170,000, and that the defendants’ property would be insufficient to satisfy an execution for this amount. But this ground, informally presented in an affidavit, cannot be regarded as a sufficient justification for an injunction. -The statement of the point raises grave doubts of its merit in fact and in law, and these doubts are, increased by the facts set forth in the defendants’ affidavits. The petition for a preliminary injunction must, however, be regarded as pursuant to and in aid of the case made by the bill; and the office of an affidavit is to support the allegations of the bill and petition, and not to amend the bill, ór to introduce new grounds of relief.

Petitioh denied.

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BROWN, District Judge.

The complainant seeks a preliminary injunction to restrain the defendants from enforcing their judgment of $53,000 and interest against the complainant. The validity of this judgment is not disputed; but the complainant in its bill alleges that it has begun an action at law against the defendants for breach of contract, upon which it expects to recover upwards of $117,000 damages for breach of contract, with interest. The ad damnum in the action at law is $150,000. The bill in equity alleges insolvency of the defendants, and that the amount of their property is insufficient to satisfy such judgment as the complainant expects to recover against them.

It appears, however, that the complainant has a valid lien by attachment of real estate, valued by the assessors of taxes at $92,250, unin-cumbered except by a mortgage of $1,500. This real estate is valued by an expert at $151,291. The complainant has also the defendants’ bond for $50,000, with the Fidelity & Deposit Company of Maryland as surety, as security for the performance of their contract with the complainant. Upon a conservative view of the value of the real es-[198]*198táte1 attached, it appears that, by its .attachment liens together with the .bond, the complainant has security to the full amount of the ad dam- • num in its writ. Therefore, if we disregard the defendants’ affidavits as to the complainant’s exaggeration of its claims for damages, and assume that the damages are as set forth in th$ bill, there is still no ground for equitable interference.

It remqins to consider what effect should be given to the affidavit of compláinant’s counsel that it is proposed to apply for an increase of the ad damnum in its action at law, and to claim the amount of the defendants’ judgment as additional damages for breach of contract. It is contended that, in such event, the complainant would expect to recover upwards of $170,000, and that the defendants’ property would be insufficient to satisfy an execution for this amount. But this ground, informally presented in an affidavit, cannot be regarded as a sufficient justification for an injunction. -The statement of the point raises grave doubts of its merit in fact and in law, and these doubts are, increased by the facts set forth in the defendants’ affidavits. The petition for a preliminary injunction must, however, be regarded as pursuant to and in aid of the case made by the bill; and the office of an affidavit is to support the allegations of the bill and petition, and not to amend the bill, ór to introduce new grounds of relief.

Petitioh denied.

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Bluebook (online)

128 F. 197, 1904 U.S. App. LEXIS 4676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-water-power-co-v-chapman-circtdri-1904.