Powers v. Waters
| Decision Date | 31 July 1843 |
| Citation | 8 Mo. 299 |
| Parties | POWERS AND ASHLEY v. T. AND C. WATERS. |
| Court | Missouri Supreme Court |
APPEAL FROM BENTON CIRCUIT COURT.
HENDRICK and PHELPS, for Appellants, insist: That the court erred in making said decree, and in overruling the motion to set it aside. That said decree was made at the return term of said bill which was erroneous. The defendants, T. & C. Waters, were made parties to said bill, because they were the holders of one of the bonds given for the payment of the purchase money: they had a suit pending against plaintiffs to recover part of the purchase money, and plaintiffs prayed that further proceedings in said suit be enjoined. After injunction granted it would be no breach of the injunction to proceed to judgment in the suit law. 3 P. Williams, 147; Com. Dig. 230, 232; 3 P. Williams, 395; 1 Mad. Chan., 131-2: 3 Bac. Abr. 648, 656. The injunction being dissolved, T. & C. Waters had the full benefit of their suit at law, but the chancery court gives them a decree for the amount they ought to recover from plaintiffs at law. This is different from enjoining a part of a judgment: in such case plaintiff in judgment collects the amount of his judgment not enjoined, and if the injunction is continued until the final hearing of the bill, the court may then make a decree for the amount the plaintiff in judgment, and defendant in bill, is entitled to recover. This is a final decree as to T. & C. Waters, and made at the return term of the subpœna. The cause was not set for hearing at the time decree was made. The trial term was the next term after. Digest, 510, §§ 18, 19. For the reasons aforesaid, the appellants pray that said judgment be reversed.
WINSTON, for Appellees. I conceive the points in this case are: 1. Did the court err in dissolving the injunction? I contend it did not, the answer of the defendants having denied all the equity of the bill, and the complainants not making any affidavit of evidence to contradict the answer. 2. Did the court err in decreeing the complainants to pay to T. & C. Waters the amount enjoined? I contend there is no error in that. See 4 Mo. R. 7. 3. The court ought to dismiss this appeal as it at present stands, only one part of the cause being before the court; the cause, as it respects Heath and the rescission of the contract, still being in the court below. 1 Mo. R. 354, 365. 4. The court erred in granting the injunction in favor of the complainants, as they filed no bond as required by statute. See Rev. Code, 314, § 11.
Powers and Ashley filed their bill in chancery for relief, and an injunction to restrain T. & C. Waters from prosecuting an action at law against them on a bond, which they had executed to Richard B. Heath, and which the said Heath had assigned to the said Waters. An injunction was granted, staying the proceedings at law. The injunction was prayed for and granted before there was a judgment in the suit at law. T. & C. Waters and others filed...
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Walker v. Pritchard
...Walker can recover or not in the pending suits is a matter to be settled by the law court in which the suits are pending. In Powers v. Waters, 8 Mo. 299, which was an injunction against the prosecution of an action at law on a bond, the injunction was dissolved, and the chancellor entered u......