Robrecht v. Robrecht
| Decision Date | 11 November 1899 |
| Citation | 34 S.E. 801,46 W.Va. 738 |
| Parties | ROBRECHT v. ROBRECHT et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. On a motion to dissolve a mere ancillary injunction, the circuit court can only be required to investigate the main cause so far as to ascertain that the equities between the parties are sufficiently doubtful to justify the continuance of the injunction until final hearing.
2. The circuit court commits no appealable error in overruling such motion if neither party insists on a hearing of the main cause, and it appears that the dissolution of the injunction may work a greater injustice or mischief to the plaintiff than the continuance would to the defendant.
3. Although the answer plainly and positively denies the allegations of the bill, yet, if the facts and circumstances shown by the pleadings, exhibits, and affidavits are strongly presumptive in favor of the plaintiff's equity, it is not appealable error for the circuit court to continue an ancillary injunction, awarded for the purpose of preserving the status of property, until the final hearing.
4. A decretal order appointing a receiver to take possession of and control personal or real property is appealable. Ruffner v. Mairs, 11 S.E. 5, 33 W.Va. 655.
5. An order or decree refusing to appoint such receiver is not appealable.
Appeal from circuit court, Ohio county; Joseph P. Paull, Judge.
Bill by John Robrecht against Henry Robrecht and others. Judgment for plaintiff. Defendant Robrecht appeals. Affirmed.
Caldwell & Caldwell and White & Allen, for appellant.
HUBBARD & HUBBARD, for appellee.
DENT P.
In the circuit court of Ohio county, on the first Monday in February, 1898, John Robrecht, plaintiff, filed his bill in chancery against Henry Robrecht, defendant, alleging that about the 2d day of January, 1883, he purchased from the Bank of the Ohio Valley a certain hotel property situated in the city of Wheeling, partly for cash and principally on credit and took the title therefor in the name of the defendant, his son, in trust for himself; that he had since paid up a large portion of the unpaid purchase money; that the defendant, who had admitted the trust until lately, was now denying it, and was trying to mortgage the property, so as to convert it into money, and squander it, he being otherwise wholly insolvent. A conveyance was prayed for, and also a temporary injunction to restrain the disposal of the property pending the litigation. On the first Monday in March, 1898, the defendant filed his answer, in which he denied the trust charged, but insisted that he was the purchaser of the property, and had paid all the purchase money so far paid, claimed that the plaintiff was in possession of the property as his agent, and admitted that he was trying to mortgage the property for the sum of $10,000 for the purpose of paying off the liens and making improvements thereon. He also prayed for an injunction against the plaintiff. The answer further avers that, if the plaintiff did purchase the property, and take the title in defendant's name, he did so with intent to defraud his creditors, without the defendant's knowledge, and because of such fraud he was not entitled to the relief sought. On the 27th day of April, 1898, on motion of the plaintiff, and after considering numerous affidavits filed by both plaintiff and defendant, who had notice of such motion, the circuit court awarded an injunction against Henry Robrecht and George J. Matheson, enjoining and restraining them until further order of the court "from selling, mortgaging incumbering, or in any way disposing of or dealing with the property described in the bill." On the 7th day of February, 1899, the defendant Henry Robrecht, having filed some additional affidavits, moved the court to dissolve the injunction, and also to appoint a receiver to take charge of the property pending the litigation. These motions were overruled, and from this order the defendant Robrecht appealed.
There are two grounds of error relied upon:
1. The refusal of the court to dissolve the injunction. It is a general rule that, where the answer fully, fairly, plainly distinctly, and positively denies the material allegations of the bill, the injunction should be dissolved on motion, in absence of proof of such allegations. Hayzlett v McMillan, 11 W.Va. 464; Mason City Salt & Mining Co v. Town of Mason, 23 W.Va. 211; Cox v. Douglass, 20 W.Va. 175; Shonk v. Knight, 12 W.Va. 667. This general rule, however, is subject to various exceptions, as is said by Judge Greene in the last case cited (page 683): "Where the plaintiff would lose all the benefit which would otherwise accrue to him should be finally succeed in the cause, or where the facts disclosed by the bill and answer afford strong presumption that the plaintiff will establish his claim for relief on the 'final' hearing, and it appears that he would suffer great and immediate injury by a dissolution of the injunction, or when the dissolution of the injunction would, in effect, amount to a complete denial of the relief sought by the bill,--in these and some other cases it would be proper to continue the injunction till the hearing." In High, Inj. § 1605, it is said: "It is accordingly held in cases of special injunctions for the prevention of irreparable injuries that on motion to dissolve the bill may be read in contradiction to the answer, and, if the equity appears in doubt, the motion will be refused, and the injunction will be continued to the hearing;" citing Purnell v. Daniel, 43 N.C. 9; Troy v. Norment, 55 N.C. 318; Lloyd v. Heath, 45 N.C. 39. In 10 Enc. Pl. & Prac. 1057, the law is stated to be: "When a motion is made to dissolve the injunction because of the denials in the answer, if the chancellor can see that the dissolution of the injunction may involve irreparable mischief to the plaintiff, or that, in the event of the plaintiff maintaining the truth of his version of the matter in controversy, he will have been subjected to greater injustice or inconvenience by the dissolution of the injunction before the final hearing than the defendant can be exposed to by a continuance of the injunction, or that there is special propriety, under the peculiar circumstances of the case, in maintaining the status quo between the parties until the dispute between them can be finally determined on the evidence, he may, and often will, in the exercise of the discretion with which he is vested, retain the injunction until a final hearing can be...
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