Home Mut. Ins. Co. v. Bauman

• Decision Date: 31 March 1851
• Citation: 14 Mo. 74
• Parties: HOME MUTUAL INSURANCE COMPANY v. BAUMAN.
• Court: Missouri Supreme Court

14 Mo. 74

HOME MUTUAL INSURANCE COMPANY

v.BAUMAN.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

HILL, for Appellant. 1. The judge of the Circuit Court erred in refusing to grant plaintiffs a new trial on the merits by a jury, upon the dissolution of the injunction. The plaintiffs were entitled to a jury by the Constitution of this State; and to a trial on the merits under the practice in chancery after the dissolution. 2. The judge erred in assessing the damages on the dissolution of the injunction, without a jury, the plaintiffs having demanded a jury. Arts. 9, 12. 3. The judge erred in refusing to allow the amendment of plaintiff's petition. Art. 2, §§ 3, 5. 4. The judge erred in permitting the conversations of Houck to be proven, no foundation having been laid for their introduction by a previous examination of Houck on the same points. 5. The judge erred in dissolving the injunction; for the whole testimony in the case, established beyond all reasonable doubt, that the injunction should have been retained; and that the application to dissolve it should have been refused. 6. The judge should have decided the motion to dissolve according to the weight of testimony--art. 9, § 16; and the dissolution of the injunction order in this case upon the testimony offered was an error in law as well as of fact.

SPALDING & SHEPLEY, on the same side. I. The court erred in dismissing the petition, and refusal of a new trial on the merits by a jury; acts 1848, §§ 16, 17, 18. 1st. The record shows that the only thing before the court was the motion to dissolve the injunction. It had been made some time before, and was on the law docket. The case was not on trial on a hearing on the merits. 2nd. The new Practice act authorizes the parties (§ 16, p. 86) to introduce testimony on such motion; which they both did in this case; but it was on the hearing of the motion still, and not on the final trial. 3rd. This act has not changed the nature of a motion to dissolve. It is, as it always was, everywhere, a mere collateral matter, like a motion to quash an indictment, or to exonerate bail, and the like. It has nothing to do with the merits of the case; and whether the motion were sustained or overruled, there must still be a trial of the case at the proper time. 1 Daniel's Ch. 1809-10, as to injunctions. When answer filed, application may be made to dissolve, p. 1828; but injunction will be continued till hearing of the case, i. e. the trial on the merits, unless the answer denies equity. Ibid, 1831, where injunction is continued. The cause in equity should be prosecuted to a hearing; if there be intentional delay by plaintiff in bringing the cause to trial, the court will dissolve the injunction. Though plaintiff may have failed to obtain an injunction provisionally, or may have failed to sustain it after answer filed, yet he is at liberty to claim it at the hearing: 1 Swans. 550. Injunctions are never made perpetual, except at the hearing of the cause; page 1897, bill must not be dismissed; 4 Hen. & Mun. 159, Blow v. Taylor--that after dissolution, plaintiff has the right to continue suit, and it is error to dismiss bill. II. The court erred in refusing a jury to assess the damages on the injunction. Act of 1848-9, p. 85, § 12, provides that on the dissolution of an injunction, a jury shall assess the damages, unless it is waived by the parties. It is in vain to say that a jury must have found in the same way; the law leaves the matter to the jury. III. The court erred in refusing to permit the amendment-- acts of 1848-9, p. 87, art. 1. These provisions contemplate amendments made in all stages of the cause, even on and after trial, when it is in furtherance of justice. The amendment prayed for, and offered here was such as could not prejudice the opposite party; for the original petition gave full notice of the whole case, and the amendment was principally directed to a specific prayer for relief. IV. The court erred in sustaining the motion to dissolve the injunction: 1. By the practice of courts of equity, it is a matter of discretion with the court, whether the injunction shall be dissolved upon filing the answer denying the equity of the bill--the answer itself being, according to that practice, considered as true, so far as it does not impeach or invalidate itself 3 Daniel's Ch. 1831, note; 1 Dev. Eq. 429; 1 Paige, 426; 1 Iredell's Eq. 194; Green's Ch. 439; 3 Sumner, 75, 76. 2. But according to our present act of Assembly, governing the matter, the answer is not taken to be true; and in this case, the petition and answer are conflicting, and are to be laid out of the question. The right of testimony is with the plaintiff, and the court is required by art. 9, § 18, new Code of Practice, to decide the motion according to the weight of testimony; and the motion to dissolve should have been overruled. V. There were merits in the petition. It alleged gross fraud, in the defendant, which was not known to plaintiffs until after the adjustment of loss and giving the order for payment; and of fraud, equity has jurisdiction; and the collection of the money ought to have been enjoined in the case as stated in the bill. 3 Dan. Ch. 1844--fraud, accident, mistake and discovery, are four of the principal grounds upon which injunctions may be applied for. 2 Story's Eq. § 885: “In general, it may be stated that in all cases where, by accident, mistake, fraud, or otherwise, a party has had an unfair advantage in proceeding in a court of law, &c., courts of equity will interfere; §§ 906, 907, 908, restraining alienations of property, &c., § 955. Story's Eq. § 184: Courts of equity possess an universal concurrent jurisdiction with courts of law, in cases of frauds cognizable in the latter. 1 Story's Eq. § 140: Contracts under mistake or ignorance of fact, are avoidable and relievable in equity. A promise to pay, as by adjustment of insurance loss, is void if obtained by fraud. 1 Hammond on Ins. 126; Herbert v. Champion, 1 Camp. 134. If fraud is discovered after a loss is paid, the money can be recovered back; and even if the assured has recovered his insurance by process of law, and the insurers receive intelligence of fraud; which they did not know whilst the suit was pending, they may maintain an action to recover back the money. 2 Marsh. 740, Bilby v. Lumley; 2 East, 469. VI. Improper evidence was admitted as to Houck; the preliminary examination not having been such as to authorize the testimony given as to his sayings and acts. 2 Barb. S. C. R. 210; 1 Wood. & M. 473. In this case Chief-Justice Tindall says that “before you can contradict a witness by showing that he has at some other time said something inconsistent with his present evidence, you must ask him as to the time, place and person involved in the supposed contradiction.” VII. The court erred, when, after the injunction was dissolved, the plaintiff demanded a trial of the cause, and called for a jury. It was then the duty of the court, either to have tried the case or continued it till a trial could be had. No jurisdiction whatever for dismissing the petition appears on the record. VIII. The plaintiffs made out in proof, a case of gross fraud and the injunction ought not to have been dissolved. IX. If the scope of the petition is limited to proof of concealment by any defect in the form of the prayer, the court should have allowed the amendment; if the scope of the petition reaches the whole case, then the court below erred in refusing a trial on the merits; for the dissolution of the injunction did not dispose of the whole merits of the case, but only of the restraining order, which is declared by §§ 31-2-3, 18 and 19, of art. 9, to be provisional. X. On the motion to dissolve neither party had a right to demand a jury; the act art. 9, § 16, requires that the court shall decide the motion. A jury could not have been had on this motion, and it would have been error to have tried the motion to dissolve by a jury. XI. It cannot be contended in this case that the judgment should only be reversed for the assessment of damages by the judge; the fraud proved by incontrovertible testimony, the refusal of the court below to permit the amendment; the error of the court in dissolving the injunction, against all the testimony in the case; the unlawful assessment of damages in the face of the statute; and the arbitrary dismissal of the suit without any right or pretense of right to do so, and expressly violating the 19th section of art. 9, and the 6th section of art. 13, and the 1st section of art. 15, authorize and require that the whole judgment, and all the orders in the case, should be reversed. XII. It is idle for the defendant to contend that this is a case where the verdict has been rendered for the right party, or that any...