McCreery v. Brown

Discretion as to Dissolving Injunction, though Equities of Bill Denied by Answer.—Though an injunction should in general be dissolved when all the equities of the bill are denied by the answer, yet there may be circumstances disclosed by the pleadings under which the Court will, in the exercise of a sound discretion, be justified in continuing it till the hearing on the merits.

Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco. This was an action to restrain the defendant Brown from prosecuting a forcible entry case against the defendants Perry and Ewald, in the County Court of the City and County of San Francisco. That suit, as appears, was originally commenced in 1860, before a Justice of the Peace. Being there decided in favor of the defendants therein, it was appealed to the County Court, where it was again decided in favor of the same parties. Brown subsequently took an appeal to the Supreme Court, where the cause remained unmoved from 1861 till 1869, when certain defects in the appeal papers were remedied upon an affidavit made by one A. Williams, to the effect that he had made certain clerical errors in the indorsements of the admission of service of the notice of appeal; and, the cause being then brought on for hearing before the Supreme Court, the judgment of the County Court was reversed and the cause remanded for a new- trial. In the meanwhile, the plaintiffs McCreery and Sullivan purchased the ground in controversy, consisting of about twenty-five acres of land in the City and County of San Francisco, from Perry and Edwards. In their complaint they allege that their grantors were in the actual possession of the land and transferred it to them; that Brown never had any right, title, interest, or possession; that he had no record title whatever; that his claim was fraudulent, and made to extort money; that, as a matter of fact, he had abandoned his forcible entry case, and claim to the premises, immediately after taking the appeal to the Supreme Court; that plaintiffs, though previous to their purchase they had had the title of the land searched, were ignorant of any claim by Brown; that the papers on appeal in said suit were insufficient to sustain the appeal taken; that after-wards, as the land became valuable, the defendants Brown and Perry confederated and combined together to defraud plaintiffs, and, in pursuance of their plans, induced Williams to make the affidavit before referred to, and caused the record to be altered so that the appeal might be heard; that the record was thereby falsified and made to state what was not the truth; that the Court was imposed upon by said affidavit and alterations, all of which were done without any notice to or any knowledge of the plaintiffs; that the appeal in the Supreme Court, not being opposed, but fraudulently connived at by Perry, resulted in a reversal of the judgment and a sending of it back for the new trial, which they prayed to restrain. They further alleged that Brown was irresponsible; that Perry and Ewald would not defend said action; and that .if it should be allowed to go to judgment, and Brown thereby and by means of his frauds obtain possession of the premises, it would require tedious and expensive proceedings to evict him. . Upon the complaint being filed, and on motion of plaintiffs, an injunction was issued and served with the summons, requiring the defendant Brown, until further order, to desist from further prosecuting the forcible entry suit in the County Court. Afterwards Brown filed his answer, specifically denying each and every material allegation of the complaint, and then moved to dissolve the injunction, supporting his motion by affidavits of A. Williams, his former attorney, and M. A. Wheaton, his then attorney, in the forcible entry case, in addition to his own sworn answer. On a hearing, the motion to dissolve the injunction was denied; and the defendant Brown appealed from the order.