Lash v. McCormick

By the Court.

-McMillaN, J.

The only point made by the appellant is, that the summons in the action in which the injunction was allowed, never having been served on the defendant, or delivered to the sheriff for service, no action was in fact commenced, and the writ of injunction was necessarily void, and the whole proceedings coram non judice.

It appears by the finding of the court below, that the complaint and summons were filed in the office of the clerk of the court, and the injunction allowed by the court com *484 missioner on the 13th of October, 1864-, The proceedings in question took place prior to the adoption of our present statutes ; their validity and regularity must therefore be determined by the provisions of the compiled statutes which were then in force.

It is a general rule in equity practice, in the absence of statutory provision, that a special injunction may be allowed on filing a bill. 3 Danl. Ch. Pl. & Pr., 1717; Parker vs. Williams, 4 Paige, 439 . If this rule was changed ’ at the time the injunction was allowed in this case, it was by the act of March 5th, 1853, entitled “An Act to authorize the exercise of all equity jurisdiction in the form of civil actions, and tor other purposes. ” Comp. Slat., Ch. 57, Sec. 19-33. Sections 21 and 22 expressly preserve writs of ne exieat, and injunction, and clearly recognize and confer the power to grant an injunction, both before, and after the formal commencement of an action by the service of a summons. See. 21 provides that an injunction maybe granted “on complaint, ” and See. 22, that it may be granted “ in the progress of an action. ”

The statute having expressly preserved the writs of ne exeat and injunction from the general abrogation of the chancery system, in the absence of express provision to the contrary, we must infer that the legislature intended to preserve these writs as they existed at the time of the, passage of the statute.

The legislature in using the words “ in all civil actions ” in Nee 21, did not intend'to prescribe that the writs mentioned could only be issued after the commencement of an action by the 'service of a summons, or the delivery of the summons for service, but intended to designate the nature or character of the class of remedies in 'the course of which a party might avail himself of the benefit of these writs. It *485 is true that Sections 19 and 20 of the chapter referred to, prescribe that equity suits must be commenced by the like process as civil actions, and it is also true that in civil actions the court acquires jurisdiction only from the time of the service of the summons. Comp. Stat., Ch. 60, Sec. 59. Put it cannot be doubted that the legislature has power to provide that the court may have jurisdiction to issue an injunction at one stage of the proceedings, while for other purposes, jurisdiction may not be acquired till another and subsequent time, as is done in the case oí attachments, and in actions for the claim and delivery of personal property.

Conceding, for the purposes of this case, that under our statute in actions in chancery, the court acquires jurisdiction for the general purposes of the action only by the service of the summons, we see no reason why the statute, so far as this limitation upon the jurisdiction is concerned, should be held to embrace the issuing of a special injunction. The sections which assimilate the manner of commencing equitable suits to that in civil actions, likewise prescribe the same process, pleadings and proceedings in the former as in the latter; this would abrogate writs of injunction ; but as they are expressly preserved by the subsequent sections 21 and 22, it is evident, that so far as the writ of injunction is concerned, it is not abolished, and .that the language of the preceding section is qualified to this extent, and if qualified to preserve the writ, why not to preserve it as it existed at the time the act was passed ? The remedy by injunction will not be so efficacious if it can only issue after the service of a summons, as it was at the time this act was passed. In order therefore to make this remedy efficacious in all cases to which it is in itself appropriate, it is necessary to permit its allowance by the court or judge “ on complaint,” as under the established practice in equity it was allowed on bill.

*486 ¥e are of opinion, therefore, that it was not the intention of the legislature to limit the jurisdiction so as to prevent the allowance of an injunction previous to the service of the summons in the action, or to the delivery of the summons to the sheriff for service, but that the writ may be allowed “ on complaint.” There is then no objection to the injunction in this case on the ground that the writ was granted before the service of the summons.'

But the service of the injunction without the service of a subpoena, would under 'the established rule in equity be irregular, and in such case the injunction would on motion be dissolved, but the proceedings are not void, and until dissolved, the injunction would be obligatory upon the defendant. Attorney General vs. Nichol, 16 Ves. 337; Parker vs. Williams, 4 Paige, 439 ; Seever vs. Hess, 5 Ib., 86 ; The People vs. Spaulding, 2 Paige, 326 ; Waffle vs. Vanderheyden, 8 Ib., 45; Depeyster vs. Graves and others, 2 Johns. Ch., 148; Corey vs. Voorhees et al., 1 Green, ch. 5 ; West vs. Smith, Ib., 309; Davis and others vs Reed, 14 Maryland R., 152.

The court commissioner in this case having had jurisdiction to grant the injunction, and the writ having been served prior to the mortgage sale, although the service was irregular for want of the service of the summons in the action, it was not void, and the injunction should have been obeyed until dissolved. The mortgage sale and subsequent proceedings thereunder were in violation of the injunction, and were void. The plaintiff therefore was not entitled to recover.

As this fully determines the case, we need not consider the further point made by the defendant. We therefore intimate no opinion upon that question.

The judgment appealed from is affirmed.