Tennant v. Kilcoyne.

• Decision Date: 09 April 1938
• Docket Number: (No. 8698)
• Court: West Virginia Supreme Court
• Parties: Victor E. Tennant v. Johanna Kilcoyne et al.

120 W.Va. 137

Victor E. Tennant

v.Johanna Kilcoyne et al.

(No. 8698)

Supreme Court of Appeals of West Virginia.

Submitted March 8, 1938.

Decided April 9, 1938.

1. Injunction

In an injunction suit, an answer to the bill of complaint may be filed in the vacation of the court in aid of a motion to dissolve a temporary injunction.

2. Injunction

An answer filed in vacation to a bill for an injunction may be considered in bar on motion to dissolve. The interpretation made in the opinion of City of Wheeling v. O. & P. Tel. Co., 81 W. Va. 438, 94 S. E. 511, that the cases of Godldin v. Vaughn's Ex'x., 14 Graft. 102; Hayzlett v. McMillan, 11 W. Va. 464; Zell Guano Co. v. Heatherly, 38 W. Va. 409, 18 S. E. 611; First National Bank v. Huntington Distilling Co., 41 W. Va. 530, 23 S. E. 792; and Mc- Kell V. Collins Colliery Co., 46 Wl Va. 625, 33 S. E. 765, only authorize the consideration of an answer as an affidavit on a motion to dissolve made in vacation, is disapproved.

3. Injunction

A temporary injunction should be refused, or when granted should be dissolved on motion, when the injury to the plaintiff by its refusal is slight as compared with the damage which would be done to the defendant by granting it, if defendant should finally prevail, or when the effect of the injunction would be to accomplish the whole purpose of the litigation without trial on the merits.

Kenna, Judge, absent.

Appeal from Circuit Court, Wetzel County.

Suit by Victor E. Tennant against Johanna Kilcoyne and others to restrain the defendants from interfering in anywise with the plaintiff in the removal of casing from, and the plugging of, a gas well located on land owned by some of the defendants, and to restrain criminal prosecutions for trespass. From an order refusing to file defendants' answer to the bill of complaint and re- fusing to dissolve a temporary injunction, the defendants appeal.

Reversed; temporary injunction dissolved; and remanded.

A. E. Larrick and W. J. Brennan, for appellants. I. M. Underwood and L. S. Schwenck, for appellee.

Riley, Judge:

This appeal and supersedeas was granted to an order of the judge of the Circuit Court of Wetzel County entered on October 18, 1937, refusing to file defendants' answer to the bill of complaint and refusing to dissolve a temporary injunction restraining Johanna Kilcoyne and S. J. Kilcoyne, Jr., from interfering in anywise with the plaintiff in the removal of casing from, and the plugging of, a gas well located on land owned by S. J. Kilcoyne, Jr., and others, and restraining the two Kilcoynes and L. W. Dulaney, a justice of the peace, from proceeding further in criminal prosecutions, instituted by S. J. Kilcoyne, Jr., for trespass growing out of the attempt of plaintiff to remove the casing from and plug the well.

Plaintiff is the owner by mesne assignments of an oil and gas lease, executed by S. J. Kilcoyne and Johanna Kilcoyne, his wife, to L. S. and W. P. Baker on May 12, 1917, on the land upon which the well involved here is located. The lease was for a five-year term "and as long thereafter as oil and gas, or either of them, is produced from said land by the party of the second part, its successors or assigns." Johanna Kilcoyne is joined as a defendant in this cause by reason of a life estate in the land involved, and the oil and gas royalties therefrom, given to her by the will of S. J. Kilcoyne, deceased.

The bill of complaint alleges that plaintiff is the owner of the oil and gas leasehold heretofore described upon which there is one producing well; that plaintiff owns the equipment and casing used in the operation of the well; that he has the right to remove such equipment and casing from the well and leasehold, and desires to make such removal for the purpose of abandoning the well; that he has attempted to do this and has been interfered with by S. J. Kilcoyne, Jr., and Johanna Kilcoyne, who have, on two occasions, ejected from the leasehold premises the materials placed thereon necessary for removal of the casing and equipment from the well and have had plaintiff and his agents arrested for trespass in attempting such removal; and that plaintiff has secured a permit from the Department of Mines authorizing him to plug the well. The prayer of the bill is that defendants be restrained from interfering with the removal of the equipment and casing used in and about the operation of the well and that the criminal prosecutions already instituted be enjoined.

The temporary injunction was granted in the vacation of the court on the sworn bill of complaint and the exhibits therewith, after notice to the defendants who were present. Later in the afternoon of the same day, after several hours' notice to plaintiff, who was represented by counsel at the time, defendants moved the judge of the circuit court to dissolve the injunction and requested that their joint and several answer be filed in support of the motion. The judge declined to allow the filing of the answer and refused to entertain the motion to dissolve for the reason (stated in the decree) "that this suit is not now pending, process not having yet issued."

There is no inherent power in a court of chancery to dissolve an injunction in vacation. Such authority exists only by statute. McGibson v. Roane County Court, 95 W. Va. 338, 121 S. E. 99. In this state, Code, 53-5-11, upon notice having been given to the opposing party, gives plenary power to the judge of any court in which a case is pending wherein an injunction is in force to deal with a motion made in vacation to dissolve such injunction. It is patent that if a case is pending for the purpose of awarding an injunction that by the same token it is pending for purposes of dissolution.

The power of a court to dissolve an injunction in vacation necessarily has inherent in it the power to allow the filing of such pleadings and papers as will make the right to a dissolution efficacious to the party seeking it. This allows the filing of an answer in vacation in aid of a motion to dissolve. Hayzlett v. McMillan, 11 W. Va. 464, 477; Goddi...