McCreery v. Brown

         It is not denied that Brown is pecuniarily irresponsible, and without property or means, and that he could be made to respond to plaintiffs for detention of their property, or costs, and that all of plaintiffs' expenditures in the matter would be a total and irrevocable loss. These allegations of the complaint are, therefore, to be taken as true, so far as this proceedingis concerned. (Cronise v. Clark, 4 Md. Ch. Dec. 403.) This being a material allegation, and undenied, the Court properly refused to dissolve the injunction. (Rich v. Thomas, 4 Jones Eq. 71; Nelson v. Robinson, 1 Hempstead, 464; Furlong v. Edwards, 3 Md. 113; Real del Monte M. Co. v. Pond Co. 23 Cal. 82; Powell v. Brown, 22 Geo. 275; Parkinson v. Trousdale, 3 Scam. 367; Buckner v. Biernes, 9 S. & M. 304; Hilliard on Inj. 94, 96, 100.)

         The defendant would not have been necessarily entitled to a dissolution of the injunction even had his answer denied the equity of the bill. It still rested in the discretion of the Court to deny the motion. (Hilliard on Inj. 90, 100; Adams' Eq. 196; Roberts v. Anderson, 2 Johns. Ch. 204; Crutchfield v. Danilly, 16 Geo. 432; Nelson v. Robinson, 1 Hempst. 464; Poor v. Carleton, 3 Sumn. 25; Linton v. Denham, 6 Florida, 533; Monroe v. McIntyre, 6 Ired. Eq. 65.)

         The proceedings of Brown, as detailed in the complaint and confirmed by the answer, were fruitful of suspicions; and the Court held, and we submit rightfully and within the limits of a reasonable judicial judgment, that a forcible entryand detainer suit which had been wrapped in a sleep of death for eight years might slumber yet a little longer, until the facts could be fairly, fully, and judicially investigated.

         JUDGES: Sprague, J.

         OPINION

          SPRAGUE, Judge

         The material allegations of the complaint constituting the gravamen of plaintiff's claim to equitable relief are specifically denied by the answer, and the special denials of collusion and fraud are supported by the affidavits of Williams and Wheaton, filed with the answer. Under the general rule that " when all the equities of the bill are denied by the answer the injunction should be dissolved," the injunction should have been dissolved, unless the circumstances of the case, as disclosed by the pleadings, be such as to justify the Court in the exercise of a sound discretion in continuing the injunction until the hearing upon the merits.

         There are circumstances disclosed by the pleadings in this case, independent of the direct issues made thereby, which might well have influenced the Judge, in the exercise of a sound discretion, to continue the restraining order until the hearing upon the merits of the case. (Godey v. Godey, 39 Cal. 166, 167.)

         Order affirmed.