Allman v. United Bhd. of Carpenters and Joiners of Am.

• Decision Date: 17 September 1911
• Citation: 81 A. 116,79 N.J.E. 150
• Parties: ALLMAN et al. v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA et al.
• Court: New Jersey Court of Chancery

81 A. 116

79 N.J.E. 150

ALLMAN et al.

v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA et al.

Court of Chancery of New Jersey.

Sept. 17, 1911.

Bill by Michael Allman and others against the United Brotherhood of Carpenters and Joiners of America and others. Application for preliminary injunction denied.

Samuel F. Leber, for complainants.

Henry Carless, for defendants.

WALKER, V. C. This is an application for a preliminary injunction, the complainants being all of the members of Local Union 1787 of the United Brotherhood of Carpenters and Joiners of America, and the suit is brought against the United Brotherhood of Carpenters and Joiners of America, a national union of carpenters and joiners, and, succinctly stated, the bill prays for a decree restoring the complainants to full membership rights in the defendant association, alleging an illegal suspension therefrom, and also prays an injunction restraining the defendants from boycotting any of the complainants and any person employing or intending to employ the complainants or any of them. The bill was filed July 24, 1911, and an order was made thereon the same day, commanding the defendants to show cause on the 1st day of August then next why an injunction should not Issue according to the prayer of the bill, and also ordering that in the meantime, and until the further order of the court, the defendants and each of them, their agents, servants, attorneys, confederates, and any and all persons acting in aid of or in conjunction with them or any of them, be restrained from conspiring, agreeing, or combining to obstruct or prevent any of the complainants from procuring employment, and from interfering with any person, firm, or corporation employing any of them, and from declaring or threatening any boycott against any of them, and from declaring or threatening any boycott against any of the products of any person, firm, or corporation employing them, and from printing, issuing, publishing or distributing any copy of any newspapers, magazine, circular, letter, or document which shall in any manner refer to any of the complainants or their association, Local Union 1787, as being nonunion, unfair, or scabs, and from procuring the dismissal from employment of any of the complainants. On the return day an order was made on application of defendants' counsel continuing the hearing on the order to show cause to August 22, 1911, and on that date the matter was continued to August 24, 1911, when it came on to be heard upon bill and affidavits, and on affidavits on behalf of defendants, in the presence of counsel of both parties.

As one of the contentions on behalf of the defendants, it was urged that no injunction should be awarded, and that the bill should be dismissed, because no subpoena ad resp. had been taken out and served upon the defendants, although four weeks had elapsed since the filing of the bill.

It is entirely settled that upon the issuance of a preliminary writ of injunction a subpoena must be taken out and served. Lee v. Cargill, 10 N. J. Eq. 331. The penalty for neglect is dissolution of the injunction. If a preliminary injunction had issued in this case, instead of a temporary restraining order, the motion now made on behalf of the defendants would have to be granted. In Lee v. Cargill, Chancellor Williamson said that the practice would be thereafter strictly followed, requiring the subpœa to be taken out with the writ of injunction and returned into court within the time prescribed by the rule for return of service of the injunction. The reason is that the suitor who would restrain his adversary must use due diligence in expediting the cause. The bill in this cause prays for an answer without oath, but, upon the issuance of either a preliminary injunction or a preliminary restraining order, the defendants might have come in and answered the bill on oath, and such answer would have been evidence for them on motion to dissolve the injunction, or in resisting its issuance, notwithstanding the prayer for answer without oath. Ireland v. Kelly, 60 N. J. Eq. 308, 47 Atl. 51. But no answer is required without a subpoena compelling it.

If a complainant could obtain a preliminary injunction and not summon the defendant to answer the bill, he could thereby perpetually enjoin him without litigating the matter in dispute between them, unless the defendant voluntarily appeared and answered. Ordinarily defendants do not voluntarily appear. They are generally unwilling to involve themselves in the annoyance and expense of litigation, with the hazard of defeat unless compelled to do so by a compulsory process of the court; and that is why it is that a complainant obtaining a preliminary injunction is required to speed his cause and bring the defendant compulsorily into court at the earliest day, and afford him an opportunity to answer involuntarily, and obtain the benefit of his answer. The writ of injunction now rarely issues upon the filing of a bill, but in its stead an order is usually made requiring the defendant to show cause on a certain day why an injunction...