Pinney, J.
It is well settled that an interlocutory injunction is liable to be dissolved upon sufficient cause shown at any stage of the proceedings after the coming in of the answer. “ And, in general, it may be said to rest in the sound discretion of the court to dissolve such an injunction upon the coming in of the answer denying the equities of the bill, or to continue it to a hearing upon the merits, if such a course shall seem best calculated to serve the ends of justice, and to protect the rights of all parties. A dissolution of an injunction after answer filed being, therefore, largely a matter of judicial discretion, appellate courts are averse to interfering with the exercise of such discretion.” In some of the states it has been broadly laid down that an interlocutory or preliminary injunction may be dissolved at any stage of the cause, either before or after answer filed, or after demurrer to the bill; while in others the rule prevails that a motion- to dissolve will not be entertained until after the coming in of the answer,— founded upon the ground, doubtless, that the plaintiff is entitled to the discovery which the answer may afford in support of the equity of the bill. High, [210]*210Injunctions, §§ 1467,1468. Accordingly, where a bill of discovery also prays an injunction, against a judgment at law, if the bill contains no allegations sufficient to entitle the' complainant to a discovery, and no ground upon which the-injunction can be sustained, a dissolution may be had upon motion without the answer of the party from whom the discovery is sought.
In the present case it is objected that it was error for the court to entertain and grant, as it did, the motion to vacate the injunction before the defendant city had answered. Like objection is made that the court erroneously compelled' the plaintiff to go to the hearing of the motion to dissolve before the plaintiff could examine the defendant Sohneidt as an adverse party, so that his examination could be used upon the hearing of the motion; but as the plaintiff’s counsel stated that he did not desire to use such examination on the question of nuisance or no nuisance, but on the question merely whether the security given by the plaintiff on the' injunction should be increased, the court required the hearing on the motion to proceed; stating that, if of opinion that the injunction should be retained, plaintiff might thereafter use such examination of the defendant Sohneidt on the matter of the sufficiency of the security. This was a proper exercise of discretion, and there is nothing to show that the plaintiff was injured by it, or by having the motion to vacate heard before the defendant city had answered. The formal answer of the city under its corporate seal would be of little or no avail as a matter of discovery, and the answer of the defendant Sohneidt, the only natural person defendant, is quite full, and seems to cover the entire case. We cannot see that the plaintiff has been prejudiced in the least by bringing to a hearing the motion to dissolve the'injunction before the defendant city had answered.
The authorities show that whether a motion to vacate an injunction may be heard before every defendant has an[211]*211swered is largely a matter of discretion, and that there is, in fact, no absolute and inflexible rule on the subject. Much depends upon the circumstances and the interest of the defendant who has- not answered, and his relation to the controversy. Minturn v. Seymour, 4 Johns. Oh. 173; Jones v. Commercial Bank, 5 How. (Miss.), 43; Rogers v. Tennant, 45 Cal. 184; High, Injunctions, § 1468. It appears to be well settled that the injunction may be dissolved atany stage in the progress of the cause, either before the filing of the answer or afterwards, or after demurrer. It is largely a matter of judicial discretion, and, unless it appears that the discretion of the court has been abused, the action of the court will be sustained. In Walker v. Backus Heating Co. 97 Wis. 160, the rule in this state is stated thus: “ The order which grants or dissolves an interlocutory injunction is a discretionary order, and will not be disturbed on appeal unless it shall appear to be an abuse of judicial discretion. It is a well settled rule of general application that when all the material allegations upon which the equities of the case rest are fully met and denied, "without evasion or equivocation, by the answer or the affidavits upon which the motion to dissolve is based, the injunction will be dissolved. High, Injunctions, § 1505. It is necessary that such facts only as constitute the equity of the case be so denied. The motion may be based upon the sworn answer alone, or upon affidavits, or upon both the answer and affidavits. E. S. 1878, sec. 2781. On such motion the court must decide, upon the facts presented, whether the injunction should have been granted, and, in case of doubt, give the defendant the benefit of that doubt.”
The action was brought to obtain a perpetual injunction against the defendants for the maintenance of a public nuisance, alleged to be especially injurious to the plaintiff. The entire equity of the case depends upon the question of nuisance. It is contended by the plaintiff that, as there were [212]*212uine affidavits on the part of the plaintiff supporting the allegations of the complaint, this fact should have prevented a dissolution, notwithstanding the showing made by the affidavits presented in support of the motion. This position is in direct conflict with Walker v. Backus Heating Co., supra, and with the statute (R. S. 1878, sec. 2781), by ■which it is provided that the application to vacate or modify an injunction “may be made upon the papers on which ■ the injunction was granted, or upon proofs, by affidavits or otherwise, on the part of the moving party. If the application be upon such proofs, but not otherwise, the opposite party may oppose the same by like proofs, in addition to those on which the injunction was granted.’.’ The parties in the present case respectively availed themselves fully of their right to produce affidavits for and against the •motion. These affidavits consisted largely of matters of opinion in respect to whether the establishment maintained by the defendant Sohneidt was a nuisance or not; but, -whether of opinion or of fact, whatever was affirmed by the affidavits on one side was as certainly contradicted or refuted by the affidavits produced on the other. The practice of trying equity cases on the merits upon exponte affidavits is certainly to be deprecated; but the only limit, under the statute, that seems to exist to the number of affidavits that may be produced in support of or in opposition ■to a motion to vacate an injunction, consists in the discretion ■of the court hearing the motion. As stated in the cases cited, whether the injunction ought to have been vacated or retained was a matter depending upon the sound discretion of the court; and, as it cannot be affirmed that such discretion in the present instance has been abused, the order vacating the injunction must therefore be affirmed, and the parties required to settle the question of nuisance by a more satisfactory method of a regular trial upon testimony given by witnesses in open court.
[213]*213The plaintiff invokes the provisions of R. S. 1878, seo. 1418,. in relation to the erection, maintenance, and removal of.
Free access — add to your briefcase to read the full text and ask questions with AI
Pinney, J.
It is well settled that an interlocutory injunction is liable to be dissolved upon sufficient cause shown at any stage of the proceedings after the coming in of the answer. “ And, in general, it may be said to rest in the sound discretion of the court to dissolve such an injunction upon the coming in of the answer denying the equities of the bill, or to continue it to a hearing upon the merits, if such a course shall seem best calculated to serve the ends of justice, and to protect the rights of all parties. A dissolution of an injunction after answer filed being, therefore, largely a matter of judicial discretion, appellate courts are averse to interfering with the exercise of such discretion.” In some of the states it has been broadly laid down that an interlocutory or preliminary injunction may be dissolved at any stage of the cause, either before or after answer filed, or after demurrer to the bill; while in others the rule prevails that a motion- to dissolve will not be entertained until after the coming in of the answer,— founded upon the ground, doubtless, that the plaintiff is entitled to the discovery which the answer may afford in support of the equity of the bill. High, [210]*210Injunctions, §§ 1467,1468. Accordingly, where a bill of discovery also prays an injunction, against a judgment at law, if the bill contains no allegations sufficient to entitle the' complainant to a discovery, and no ground upon which the-injunction can be sustained, a dissolution may be had upon motion without the answer of the party from whom the discovery is sought.
In the present case it is objected that it was error for the court to entertain and grant, as it did, the motion to vacate the injunction before the defendant city had answered. Like objection is made that the court erroneously compelled' the plaintiff to go to the hearing of the motion to dissolve before the plaintiff could examine the defendant Sohneidt as an adverse party, so that his examination could be used upon the hearing of the motion; but as the plaintiff’s counsel stated that he did not desire to use such examination on the question of nuisance or no nuisance, but on the question merely whether the security given by the plaintiff on the' injunction should be increased, the court required the hearing on the motion to proceed; stating that, if of opinion that the injunction should be retained, plaintiff might thereafter use such examination of the defendant Sohneidt on the matter of the sufficiency of the security. This was a proper exercise of discretion, and there is nothing to show that the plaintiff was injured by it, or by having the motion to vacate heard before the defendant city had answered. The formal answer of the city under its corporate seal would be of little or no avail as a matter of discovery, and the answer of the defendant Sohneidt, the only natural person defendant, is quite full, and seems to cover the entire case. We cannot see that the plaintiff has been prejudiced in the least by bringing to a hearing the motion to dissolve the'injunction before the defendant city had answered.
The authorities show that whether a motion to vacate an injunction may be heard before every defendant has an[211]*211swered is largely a matter of discretion, and that there is, in fact, no absolute and inflexible rule on the subject. Much depends upon the circumstances and the interest of the defendant who has- not answered, and his relation to the controversy. Minturn v. Seymour, 4 Johns. Oh. 173; Jones v. Commercial Bank, 5 How. (Miss.), 43; Rogers v. Tennant, 45 Cal. 184; High, Injunctions, § 1468. It appears to be well settled that the injunction may be dissolved atany stage in the progress of the cause, either before the filing of the answer or afterwards, or after demurrer. It is largely a matter of judicial discretion, and, unless it appears that the discretion of the court has been abused, the action of the court will be sustained. In Walker v. Backus Heating Co. 97 Wis. 160, the rule in this state is stated thus: “ The order which grants or dissolves an interlocutory injunction is a discretionary order, and will not be disturbed on appeal unless it shall appear to be an abuse of judicial discretion. It is a well settled rule of general application that when all the material allegations upon which the equities of the case rest are fully met and denied, "without evasion or equivocation, by the answer or the affidavits upon which the motion to dissolve is based, the injunction will be dissolved. High, Injunctions, § 1505. It is necessary that such facts only as constitute the equity of the case be so denied. The motion may be based upon the sworn answer alone, or upon affidavits, or upon both the answer and affidavits. E. S. 1878, sec. 2781. On such motion the court must decide, upon the facts presented, whether the injunction should have been granted, and, in case of doubt, give the defendant the benefit of that doubt.”
The action was brought to obtain a perpetual injunction against the defendants for the maintenance of a public nuisance, alleged to be especially injurious to the plaintiff. The entire equity of the case depends upon the question of nuisance. It is contended by the plaintiff that, as there were [212]*212uine affidavits on the part of the plaintiff supporting the allegations of the complaint, this fact should have prevented a dissolution, notwithstanding the showing made by the affidavits presented in support of the motion. This position is in direct conflict with Walker v. Backus Heating Co., supra, and with the statute (R. S. 1878, sec. 2781), by ■which it is provided that the application to vacate or modify an injunction “may be made upon the papers on which ■ the injunction was granted, or upon proofs, by affidavits or otherwise, on the part of the moving party. If the application be upon such proofs, but not otherwise, the opposite party may oppose the same by like proofs, in addition to those on which the injunction was granted.’.’ The parties in the present case respectively availed themselves fully of their right to produce affidavits for and against the •motion. These affidavits consisted largely of matters of opinion in respect to whether the establishment maintained by the defendant Sohneidt was a nuisance or not; but, -whether of opinion or of fact, whatever was affirmed by the affidavits on one side was as certainly contradicted or refuted by the affidavits produced on the other. The practice of trying equity cases on the merits upon exponte affidavits is certainly to be deprecated; but the only limit, under the statute, that seems to exist to the number of affidavits that may be produced in support of or in opposition ■to a motion to vacate an injunction, consists in the discretion ■of the court hearing the motion. As stated in the cases cited, whether the injunction ought to have been vacated or retained was a matter depending upon the sound discretion of the court; and, as it cannot be affirmed that such discretion in the present instance has been abused, the order vacating the injunction must therefore be affirmed, and the parties required to settle the question of nuisance by a more satisfactory method of a regular trial upon testimony given by witnesses in open court.
[213]*213The plaintiff invokes the provisions of R. S. 1878, seo. 1418,. in relation to the erection, maintenance, and removal of. slaughter houses, providing that: “No person shall erect,,, maintain or keep any slaughter house upon the bank of any river, running stream or creek, or throw or deposit in suck), running stream any dead animal or any part thereof or any of the carcasses or offal therefrom into or upon the banks of any such river, stream or creek, which shall flow through, any city or village,-or erect, maintain or use any building» for a slaughter house, within the limits of any village incorporated or unincorporated, or any organized town containing two hundred or more inhabitants, or at any place-within one eighth of a mile of any dwelling house or building used as a place of business; and every person who shall violate any of the provisions of this section shall forfeit for-each such violation not less than ten nor more than one-hundred dollars; and the majmr of the city, president of the village, and the chairman of the town in which any such slaughter house is located, shall have power to, and shalL cause the same to be immediately removed; and every such officer who shall knowingly permit any slaughter house to be used or maintained, contrary to the provisions of this-section, shall forfeit not less than fifteen, nor more than fifty dollars. In any county containing a population of one hundred thousand or ■ over, all the provisions of this section iir relation to slaughter houses shall apply to all establishments and manufactories in which dead animals or any part thereof or any of the carcasses or offal therefrom are collected and converted into marketable products.”
Whatever criticism may be made as to the validity of this, statute, it is a sufficient answer to its application to the present case to remark that it is no part of the jurisdiction of a, court of equity to enforce bj» injunction the criminal or penal' statutes of the state, nor will it interfere for The prevention of an illegal act merely because it is illegal. In the absence-[214]*214of any injury to property or property rights, it will not lend its aid by injunction to restrain the violation of public or penal statutes, or the commission of immoral of illegal acts. High, Injunctions, § 20. Whether the acts compláined of -are followed by such consequences as to render them an actionable nuisance is the real question, in any event, whether forbidden by penal statute or not. Whether wrong and ■damages to the plaintiff so concur, under the circumstances stated, as to show a nuisance especially injurious to the plaintiff, which should be .restrained, was the real question. Upon that question, the court, in the exercise of its undoubted •discretion, found against the plaintiff, and vacated the injunction granted by the court commissioner.
In view of the facts presented by the record and the showing made, we cannot say that there was an abuse of judicial discretion, warranting the interference of this court on appeal from the order vacating the injunction.
By the Court.— The order vacating the injunction, appealed from, is affirmed.