Osborne v. Williams

New Jersey Court of Chancery

Osborne v. Williams

40 N.J. Eq. 490

DecidedOctober 15, 1885

StatusPublished

This text of 40 N.J. Eq. 490 (Osborne v. Williams) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Osborne v. Williams, 40 N.J. Eq. 490 (N.J. Ct. App. 1885).

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Opinion

Bird, Y. C.

In this case, a final decree was advised that an injunction should issue restraining the defendants from carrying on their' trade in a particular manner. Before ten days elapsed from the filing of the decree, the complainant issued his writ upon that decree.

The defendants have given notice of motion “ to dissolve the injunction as improvidently and irregularly issued, and, also, for' an order staying the issuance of process on the final decree pending the appeal.” Clearly, under the rule (149) and the case of Schenck v. Conover, 2 Beas. 31, the complainant was not entitled, to his writ at the time it was issued.

It seems to me, just as clearly, that filing his notice of appeal within the ten days, stays the writ of execution until the further' order of this court. Therefore, I am quite well satisfied that it is improper for the defendants to ask the court, at this time, to-stay such writ pending the appeal. So far as he is concerned, it' is already stayed by the rule of the court. It will be stayed, unless the other side comes in under the rule and shows good cause' why it should no longer be stayed. Yery many conditions may arise in which the court would feel called upon in the exercise of its discretion, to award the writ, notwithstanding the appeal.

The writ must be set aside as irregularly issued. The motion to stay the writ pending the appeal, will be denied. There-should be no costs to either party. I will so advise.

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Bird, Y. C.

In this case, a final decree was advised that an injunction should issue restraining the defendants from carrying on their' trade in a particular manner. Before ten days elapsed from the filing of the decree, the complainant issued his writ upon that decree.

The defendants have given notice of motion “ to dissolve the injunction as improvidently and irregularly issued, and, also, for' an order staying the issuance of process on the final decree pending the appeal.” Clearly, under the rule (149) and the case of Schenck v. Conover, 2 Beas. 31, the complainant was not entitled, to his writ at the time it was issued.

It seems to me, just as clearly, that filing his notice of appeal within the ten days, stays the writ of execution until the further' order of this court. Therefore, I am quite well satisfied that it is improper for the defendants to ask the court, at this time, to-stay such writ pending the appeal. So far as he is concerned, it' is already stayed by the rule of the court. It will be stayed, unless the other side comes in under the rule and shows good cause' why it should no longer be stayed. Yery many conditions may arise in which the court would feel called upon in the exercise of its discretion, to award the writ, notwithstanding the appeal.

The writ must be set aside as irregularly issued. The motion to stay the writ pending the appeal, will be denied. There-should be no costs to either party. I will so advise.

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Bluebook (online)

40 N.J. Eq. 490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborne-v-williams-njch-1885.