Fenwick Hall Co. v. Town of Old Saybrook

• Decision Date: 12 March 1895
• Docket Number: 826.
• Citation: 66 F. 389
• Court: U.S. District Court — District of Connecticut
• Parties: FENWICK HALL CO. v. TOWN OF OLD SAYBROOK.

66 F. 389

FENWICK HALL CO. v. TOWN OF OLD SAYBROOK.

No. 826.

United States Circuit Court, D. Connecticut.

March 12, 1895

Seymour & Knapp, for complainant.

Lewis E. Stanton, for defendant.

TOWNSEND District Judge.

Motion to set aside an order granted ex parte, restraining the defendant from levying on and selling a certain hotel belonging to the orator. The material facts are as follows William L. Matson and others, having brought an application to the superior court for Middlesex county, in this state for the layout of a highway, obtained judgment therefor against the orator and defendant herein, and an order for the assessment of benefits, and for the collection of the same including the sum of $5,872.10, against the orator herein. Said order directed that said assessments be collected, and said collection be enforced, in the same manner as in the case of collection of town taxes. This is the method of collection provided also by statute in such cases. The defendant claims that this court has no jurisdiction to stay these proceedings, under section 720 of the Revised Statutes of the United States, which is as follows:

'The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.'

The orator resists the motion. The preliminary objection made is that courts will refuse to dissolve an injunction, granted on a bill for discovery or disclosure, until after answer. I do not understand that the practice under said alleged rule prevents the court from inquiring into the merits of the action, especially in a case where a mere temporary restraining order has been granted ex parte, and without any such previous opportunity. Such order merely suspends proceedings until the court can have an opportunity to inquire as to whether any injunction should be granted. Where a want of equity appears on the face of the bill, the court will set aside an injunction upon motion, at any time. 1 Fost.Fed.Prac. 385. But even if it be assumed that the rule is as claimed, and that it is applicable to a mere restraining order, it would not apply where the motion to set aside the order admits the truth of the allegations as to which discovery is asked, and where the matters sought to be discovered would not be material at the trial. White v. Steinwacks, 19 Ves. 83.

It is next suggested that said statute is not...