Snediker v. Pearson

2 Barb. Ch. 107

Opinion

The Chancellor.

The vice chancellor erred in allowing an injunction in this case; even if it was regular to allow it ex parte, after the defendant had appeared in the suit by a solicitor. For if the allegation in the supplemental bill was true, that- the award was obtained by the fraud and corruption .of thearbitrators, or that'there never was any suteiissisn to them, as arbitrators, of the matters in difference between the parties, the complainant had a perfect defence, at law. to the suit upon the alleged award. And for that reason he was not entitled to an injunction to sta'y the proceedings in that suit, either before or after judgment. . .. .....

The question for consideration here, however, is whether the issuing of the injunction without nqtice to the defendant was regular. The course to be púrsued to obtain an injunction, Upon-a supplemental bill, which injunction is to affect the rights of a defendant who has ¡appeared, to the original bill by a solicitor, is pointed out in the case of Bloomfield v. Snowden, (2 Paige's Rep. 356.) It was there settled that it was irregular to issue a general" injunction,, ex. parte, to-continue until thé defendant moved to dissolve the same, ágainst a party who-had appeared in the suit by a solicitor -; and that he was entitled to notice-of the application. According to the decision in that casé, the injunction issued upon this supplemental bill was or- regular. There was no necessity, even for a temporary injunction, to restrain the defendant from proceeding until he could have a chance to be heard upon a regular notice of the application. The vice chancellor' therefore should have set aside the injunction, as irregularly issued.

The order appealed from must be reversed, with costs. And the injunction must be set aside as irregularly issued, with the costs of the motion; which costs must be inserted and taxed in the same bill with the defendant’s costs on this appeal.