Wood v. Dwight

7 Johns. Ch. 295

• Court: New York Court of Chancery
• Decided: July 1, 1823
• Status: Published

Opinion

The Chancellor said, that after an order dissolving an injunction, or discharging a party from a writ of ne exeat, was duly entered, no subsequent appeal by the dissatisfied party, could, of itself, aftect the validity of the order, or revive the process, and give it force and effect. An appeal only stays future proceedings in the Court; but here is no further proceeding. The order is perfect and finished, eo instanti that it is entered: and if the iniunc- . ’ , . , , n , . tion could be revived by the mere act of the party m fi]¡ng an appeal, it would be giving to him not only a power of control over the orders of the Court, but of creating an injunction. The Supreme Court of this State, in Hoyt v. Gelston, (13 Johns. Rep. 139.) held, that an injunction was not revived by an appeal, so as to operate as a stay of proceedings at law; and the Supreme Court of the United States, in Young v. Grundy, (6 Cranch, 51.) held, that no appeal would even lie upon an interlocutory order dissolving an injunction. Whether an appeal can be sustained, is a question for the Court of Errors; but supposing it can be sustained, it is impossible that a process that is duly discharged, and functus officio, can be revived by the mere act of the party. How could this Court undertake to enforce the process, and punish con-, tempts of it, in the very face of the order dissolving it? When a process is once discharged and dead, it is gone for ever ; and it never can be revived, but by a new exertion of judicial power. It is suificient, in this case, to declare, that the defendant is entitled to pursue his remedy at law, equally as if no injunction had issued; and no special leave to proceed is requisite.