The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1879-10-04
RAILROAD WAR.

Decision Of Judge Melvin In the Natter
Of b. a Or. n. Go. VI. n, W. a ny. n.
n. Co., Upon Motion OF Plaintiff 10
Dismiss. ls 'se ll.
The following Il the opinion Of Judge
Thayer Melvin Of the Circuit Court Of this
county, allowing the withdrawal Of the
applications Of the Baltimore and Ohio
Railroad Company, for inlunctions res.
training the Pittsburgh, Wheeling and
Kentucky Railroad Company and the city
OF Wheeling from interfering with the
property or hands Of that company, and
his reasons therefor.
lam Of the opinion that the presenta.
ton OF bill for injunction 10 q Judge In
vacation Is not the beginning Of 4 suit.
Ordinarily, suits In equity are begun by O
summons. Where an injunCtioni Ia desired,
however, II Is usual to present the bill to
tho Court or Judge before summons and
before filing the bill In the Clerks office.
II the injunction "a awarded the bill Is
then filed with the Clerk, in his Office, and
a summons Is Issued, upon which, II terms
Of order have been complied with, the or
der Of injunction Is Endorsed. II refused,
proceedings in injunction end, unless the
complainant desires to make application
under the statute to Judge Of the Appel.
late Court; but he may nevertheless issue
process and file bill II there are other
prayers for relief.
In making the order awarding injunc.
ton the formal and OF course proceedings
in the office are simply anticipated, and
II these are not taken and had the order
possesses no life or vitality. II takes effect
when suit Is formally brought, and not I'M.
til then.
[see Sands suit in equity Sec. 500 and
4Ol Davis vs.. Reed. 14Md. 49,
And 1t Is not seen that notice OF applica-
ton and answer filed affect the question.
The notice Is not process, aud Is not reco-
gnized rs a means OF bringing suit, It
serves to call the attention Of the opposing
party, or one or more Of the defendants
named, to the application, and has no et.
lect beyond the hearing. And the answer
or more accurately, the affidavit OF the
party, intended 10 be used as an answer
after bill fled-whileitma may and should be
considered, is TO be regarded and treated
as pertaining 10 the application, rather
than to pending cause.
But 1t Is also claimed that there was an
agreement or understanding between the
parties, when they met pursuant to the
notice, in effect waiying process and the
filing OF bill in office, or more accurately,
perhaps, that there was an agreement or
understanding that the bill presented
should be fled as In pending case.
1t is true that the defendant has 80 re-
garded this matter. It istrue, also, that
the plaintiff seems TO have been under
the impression that there is an existing
suit; and 1t was not until late in the argu-
ment on the right to dismiss the cause that
the compliments counsel, accepting, the
view suggested by myself, moved towith.
draw the applicatien-a motion based OF
course upon the theory that there exists
no cause TO be dismissed.
That parties may agree to waive process
and to treat pleadings as filed in cause,
may be true, but notwithstanding the fl
ing Of bill, exhibits, and the written agree
ment, and the endorsement OF such filing,
by the Clerk, made in the Office OF the
Judge, and notwithstanding the terms OF
the formal motion to dismiss and the ar
gument in its support, more than doubt
whether any such understanding as would
lind the parties or save the record has
been shown. The written agree
ment in terms provides for
the filing Of the bill upon
TIC application, what would seem to ex-
clude the idea Of filing in he nit. The
fact that the endorsement was made by
the clerk, who happened to be present, Is
not regarded as material as his act may
well be understood as simply carrying out
the provision referred to. And besides,
his acts outside of the Office, have not OF
themselves authoritative effect. II he had
not been present the endorsement il made
at all, would probably have been made by
myself, Us was done In the case of the mo-
ton to dismiss. Nothing was said at the
time as TO waiver Of process, nor so far as
l reCollect, as to filing answer, and the
counsel for the complainant upon being
inquired Of at the argument repudiated
the understanding. One-Mr. Russell
being understood TO state that "the
cause" referred to in the motion and pre-.
pared order was, according to his view,
the proceeding before the judge the
other Mr.. Lamb-that he had no under
standing on the subject. -"
Under this state Of facts, not insisting
upon the rule Of court on the subject OF
verbal agreements, am not able 10 say
that process has been waived, or that
the hill should be treated as fled in the
cause.
1t seems to me scarcely fair to say that
''the court has for month treated
these bills as fled" nor am prepared 10
yield a ready assent to the proposition
that was not called upon TO suggest the
non-existence of the suit. Certainly re-
garded tho bill as filed in the proceedings
before me, but can't say that at any
time prior to the agreement thought Of
the effect, or want OF effect, that such
ding would have upon the subsequent
proceeding, II any were had. It might
have been suggested at an earlier stage, il
is true, and this perhaps is the only
ground for assuming that I was party,
even by implication, to the understanding
averred. m :
And l had supposed and still suppose
that was or would be called upon TO
make the suggestion. It is not seen that
in passing upon the motion TO dismiss the
cause. l could avoid deciding whether
the cause was pending; and decision
either granting or refusing the motion,
would, upon appeal, it seemed to me,
bring the precise question here presented,
before the Appellate Court, for adjudica.
ton. But at most, it was no more than
an inadvertence, brought about imme-
diately by running discussion between
judge and counsel, and not intended for
the benefit especially OF either party, and
having been made, and one OF the parties
having adopted 1t, decision OF the cues.
ton Is now deemed unavoidable.
Entertaining these views l am constrain.
ed to the opinion that party may, Of.
right, withdraw his application for an in
junction, under the circumstances here
appearing. But were it a matter Of discre-
ton with the Judge, see no sufficient
reason against the complainant being per.
mitted to take that action. No injury il
done the defendant !. No costa Of CONT ara
incurred, but little labor is occasioned by
changing the answer to a bill, and no
rights Of co.defendants are to be settled.
The object OF complainant In Eant;rr