Staley v. Big Sandy, E.L. & G.R. Co.

• Decision Date: 10 December 1907
• Citation: Staley v. Big Sandy, E.L. & G.R. Co., 59 S.E. 946, 63 W.Va. 119 (W. Va. 1907)
• Parties: STALEY v. BIG SANDY, E. L. & G. R. CO.
• Court: West Virginia Supreme Court

59 S.E. 946

63 W.Va. 119

STALEY v. BIG SANDY, E. L. & G. R. CO.

Supreme Court of Appeals of West Virginia.

December 10, 1907

Submitted June 12, 1907.

Syllabus by the Court.

The granting of a motion to dissolve an injunction, before final hearing of the cause, is not conclusive of the party's right in the premises, and cannot be pleaded as res judicata upon his right to an injunction at the final hearing.

[Ed Note.-For cases in point, seeCent. Dig. vol. 27, Injunction§ 396.]

If an injunction is dissolved on coming in of an answer denying the equity of the bill, and testimony is afterwards taken and filed showing the right to such relief, the injunction may be reinstated.

[Ed Note.-For cases in point, seeCent. Dig. vol. 27, Injunction§ 394.]

An order dissolving an injunction, before final hearing, on filing of an answer denying the equity of the bill, is not conclusively final until the cause is ended, since the injunction may be reinstated pending the cause or at the hearing; and if the decree ending the cause is simply a dismissal without prejudice, such dissolution order is not a bar to an injunction in a new suit for the same purpose.

[Ed. Note.-For cases in point, seeCent. Dig. vol. 27, Injunction, § 396.]

Dismissal of a suit without prejudice merely prevents operation of the decree as a bar to a new suit, leaving to the parties the same rights of prosecution and defense as if the new suit were the first instituted.

[Ed. Note.-For cases in point, seeCent. Dig. vol. 30, Judgment, § 1018.]

The dismissal must be upon the hearing, and not in terms directed to be without prejudice, to entitle a decree or order dismissing a former bill to be pleaded in bar to a new bill for the same matter.

[Ed. Note.-For cases in point, seeCent. Dig. vol. 30, Judgment, §§ 1031, 1032.]

Appeal from Circuit Court, Wayne County.

Suit by S. C. Staley against the Big Sandy, East Lynn & Guyan Railroad Company.From certain decrees reinstating the cause and permitting complainant to file a supplemental bill, awarding an injunction thereon, and refusing to dissolve such injunction on the filing of defendant's plea of res judicata, it appeals.Affirmed and remanded.

Holt & Duncan, for appellant.

William Fry and Campbell, Heffley & Davis, for appellee.

ROBINSON J.

An injunction having been awarded plaintiff, restraining the defendant a public railroad corporation, from further building its roadbed, or grading and constructing a way for same through his land, the defendant filed its answer, to which there was general replication, and moved for dissolution of the injunction.The allegations of plaintiff's bill as to entry of the defendant on his land and construction of its railroad thereon were admitted by the answer, but it was denied that such entry and construction were without acquired right therefor; and it was averred that the defendant entered and commenced its work thereon with the express consent of plaintiff; that it had purchased from plaintiff the right of way, and paid a valuable consideration therefor; that it had taken possession thereof pursuant to said purchase and payment, and constructed its roadbed thereon at great expense; that plaintiff well knew he had sold the same as aforesaid, and made no objection until long after defendant had taken possession and performed much work thereon; and that plaintiff had conceived the wrongful and fraudulent intention of depriving defendant of said right of way, notwithstanding he had fairly sold same and received the full contract price therefor.The answer sets forth details relative to the aforesaid alleged purchase, the taking of possession by defendant thereunder, and its failure to receive conveyance in pursuance thereof.It prays that the injunction be dissolved, the contract for purchase of said right of way be specifically enforced, and the plaintiff required by decree to make proper conveyance.Said motion being heard in the circuit court on October 6, 1903, upon bill, answer, general replication, and the other proceedings in the cause, it was decreed that said injunction be dissolved, and the cause retained for further adjudication of the other matters involved therein.Depositions were thereafter taken; and on February 23, 1905, the cause was again heard, upon the aforesaid papers and proceedings, and depositions taken and filed; whereupon the court was of opinion that the defendant was not entitled to the affirmative relief sought in its answer, and said answer and the bill were dismissed, "without prejudice to the right of either party to institute any other suit or proceeding at law or in equity, upon any of the matters set up in said bill or answer, in any court having jurisdiction thereof, should they or either of them be hereafter so advised."Upon the motion of plaintiff at a subsequent term, on May 17, 1905, the court, reciting that it appeared there had not been three terms of said court since entry of said decree dismissing the cause, ordered the cause to be reinstated and placed upon the docket; and thereupon the plaintiff was permitted to file that which is called in the record a supplemental bill, and the cause was remanded to rules for process thereon.Upon this last-named bill, on May 8, 1905, the court, in vacation, awarded an injunction in pursuance of its allegations and prayer, restraining the defendant from further entering upon the lands mentioned in the original bill, and from operating and maintaining a railroad over the same, until further order of the court.

We find the said supplemental bill to make no reference to the original bill or cause, but to set forth plaintiff's ownership of the same land, and to make substantially the same case; except it is alleged that the said railroad is completed through the land, that defendant is daily operating the same in running trains back and forth thereon, and is a constant trespasser, without authority for entry upon said land, or the construction or maintenance and operation of said railroad.

The defendant, on May 29, 1905, in vacation, moved to dissolve the injunction order so awarded upon said supplemental bill, and tendered and filed its plea of res judicata, to which there was general replication.By said plea it was averred, in substance, that the order of October 6, 1903, dissolving the former injunction, was a finality of the right to an injunction as prayed for by the supplemental bill; that the matters and things adjudicated upon the original bill are the same as those attempted to be reopened by this supplemental bill; that the parties and subject-matter are the same, and reference is made to the record in the cause in verification thereof; that the decree of February 23, 1905, was final, and a full adjudication of all matters arising upon the record of the cause, and is a bar to the prayer of said supplemental bill.Thereupon, as recited by the record, the cause was heard upon the plaintiff's bill, answer of defendant thereto, general replication to said answer, supplemental bill, said plea of defendant with general replication thereto, depositions taken and filed, the several orders and decrees theretofore entered, and the motion of the defendant to dissolve said injunction awarded May 8, 1905; upon consideration whereof, with consent of parties that the cause be heard upon the supplemental bill the same as if fully matured and set for hearing, the motion to dissolve was denied.From the said decrees reinstating the cause on the docket and permitting the supplemental bill to be filed as aforesaid, awarding an injunction on said supplemental bill, and refusing to dissolve such injunction on filing of defendant's plea of res judicata, the defendant appeals.

The right of the plaintiff to prevent, by process of injunction or the interposition of a court of equity, such taking of his property as alleged is so well settled as to demand no review here.As to this, it suffices to refer to the opinion in Jackson v. Big Sandy, East Lynn & Guyan Railroad Co.(decided at this term)59 S.E. 749, wherein the defendant is the same as here.Has the plaintiff's plain right to so interfere been determined against him by final adjudication, so as to bar him from the relief sought in the last prayer he makes?This is the meritorious question; and the gist of the whole matter presented by this record is determined by answer to it.It is insisted that the dissolution of the first order of injunction is res judicata and bars plaintiff from further relief.In view of the peculiar determination of the original cause by the decree without prejudice, is such position tenable?We hold that it is not.Mere dissolution of the injunction, on coming in of defendant's answer and replication thereto, is not by any means a final determination of plaintiff's right to an injunction in the cause, notwithstanding this remedy was his sole object.The cause still pending, he was entitled to introduce further proof and have the injunction reinstated.Or, indeed, since the allegations of the answer that the defendant had a right to the land it was taking, by a purchase from plaintiff which it asked to be specifically performed, negatived the allegations of the bill on which the injunction rested, and called for its dissolution at that time, yet when this sole defense disappeared by failure of proof, leaving the allegations of the bill in fact without defense, plaintiff was entitled to reinstatement of the injunction.Why it was not then promptly reinstated, instead of a dismissal of the right...