The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1880-03-25
TEIEoRAPnIc TRounLEs.
Tn. 1,,une.iOn dissolved aud the a. q
Pa ". Q. once More In Possession;

motion to dissolve the injunction granted
The B. & o. R. 90. on last Tuesday re-
the W. U. & A. & P. Co.'S from
interfering with certain poles and wires
claimed by the former company on Mar.
ket street, from Twelfth to Fourteenth and
down Fourteenth to South street. Ac-
cordiugly yesterday morning after the
court had opened the Judge proceeded to
give his opinion in the matter, Of which
we give the following abstract. Atterre.
citing the bill preliminary to the prayer
asking for an injunction submitted by the
B. & O., the Judge said:
Are the reasons assigned why the in
junction should not be dissolved sui
The party making an application for an
Injunction is presumed not only to know
what his rights are but to be prepared al
the time Of making the application TO sup
mort those rights, for the writ is harsh
remedy and should be restored to only IN
cases where It's remedy is invoked to pre-
vent substantial and positive injury, or
where this has already occurred, to end It,
or In other words where the injury Is
irreparable.
a motion for the dissolution OF an inJunc'
tion unless the requirement TO do 80 Is
urgent, This question OF a continuance on
a motion to dissolve arose and was decid;;
ed in the case Of Radlord's ex'ors vs.: lnnes'
ex'x reported in LIST Hening and Mum
ford, page Z. This was q motion TO dis
solve an injunction to stay proceedings on
A bond which was given for the purchase
money OF tract OF land in Ohio; that in
consequence OF the interference OF surveys
made on behalfof other persons prior to
that OF lines, 1t appeared that the estate
Of Radford the testator OF the compliments
would lose 173 acres, part of the. tract
which he had bought. They introduced
presumptiye evidence OF this, which con-
sisted OF plat and certificate OF survey,
signed by q surveyor in the State Of Ohio
and found among the papers OF William
Radiord, but which was not duly anthem
ticated.
The answer denied the allegation in the
bill and demanded proof OF their truth.
A motion was made for continuance on
the ground that at the next term they
could show the allegations to be true,
which they had been prevented from do
ing hitherto.
The collection 10 a continuance was
made on the ground that it was inConsist.
emit with the practice OF this Court. The
reply to this was that the answers had
been lately filed, and that until then the
complainants were not informed OF the
points intended TO be controverted.
The Court says: "The reasons assigned
for o continuance are not sufficient to in,
duce the Court to depart from the general
rule; and this is, never to continue mo
ton for the dissolution Of an injunction
unless from some very great necessity; because
the Court is always open to grant, and, o
course, to reinstate an injunction, when
ever II shall appear proper TO do so, anc
becauss, too, the plaintiff should always b.
ready 10 prove his BILL" The injunction
was dissolved.
Is there the existence Of rery great ne
cessity in this case that the motion for
continuance should prevail? Such a ne
cessity, looking now only at the bill ant
answers, and the affidavit Of Mr.. Tracy
does not appear, because tho answer Is t
be taken as true, as the allegations OF tht
answer denies all the equities OF the bill
The affidavit in general terms states tina
the allegations OF the bill can be substanti
ated, and the allegations OF the answer
in those particulars in which they contra
dict the allegations OF the bill can be dis
proved, &c, This is tie same 'aftiant who
swore to the bill. But the ailiant does mo-
state the names OF any parties, nor wha
the particular facts arc that they vii!
swear to. But even il it did, 1t would
appear to US to be strange prece'
dent to inaugurate, to allow an atiant tc
DELAY In this manner the dissolution OIL
an Injunction when the defendant has de
priyed this complainant Of all his equita
Bic grounds by fully, fairly and positively
denying all the equities OF the bill, where
there Is the existence OF no very great
necessity" for doing so.
But lis claimed by the complainant
that OIL the showing OF the atfidavits ten:
dered and read in these proceedings, and
the general replications filed by 1t to
the answers in the case, that 1t has right
10 the continuance, and that the Court
has no discretion out to allow 1t, and in
support OF their views cite the Court to
the case OF Hazlett L Mcmillan ct al. in
18th West Virginia, p. 464.
The court in this case in its opinion
shows that where replication is filed de-
nying the allegation OF the answer, then
the general rule in equity does not obtain,
It says: sour Code does not give the same
force or effect to an answer where there Is
replication thereto, that was given to an
answer under the rules OF equity prior TO
it's adoption" In view Of the above de-
cision, The objection on the part OF the de-
PENDANTS, that 1t is not competent for the
plaintiff to file replications In this case
under the circumstances, is not well taken.
Quoting billiard, the court says and
adopts Ills views as their own, when he
saws: Notwithstanding the discretionary
power on the subject, 1t Is the general rule
that an injunction will be dissolved: at the
hearing OF motion to dissolve 1t on bill
and answer, II the answer fully, fairly,
plainly, distinctly and positively denies
The allegations in the bill, on which the
Injunction is granted; and II the bill is not
supported by proof, or where the answer
denies The equity charged In he Dill, a respon'
siye answer must be taken as true; in such
case the injunction cannot be sustained,
unless there be some special reason 10 au-
thorize II. Thus when the answer denies
the equities in the bill, and there Is no
replication, the injunction will be dissol.
we'd, unless the plaintiff offers satisfactory
aflidayits, that he has witnesses to dis.
prove the answer, whom he can produce
by the next term, but has not been able to
procure since the answer"
From this we conclude that the com.
plainant has right to file attidavits To
support the allegations OF the bill, because
the FIRST opportunity when he can file atfi.
davits in support OF bis bill presents itself
only after It's allegation has been success.
fully denied by the answer, so far then as
the abstract right OF the plaintiff Is con.
cerned, under the circumstances in this is
concerned, We conclude that he has o
right to file afEidaVlts.
But while this Is true, the questions OF
dissolying or not dissolving the injunc.
tinna IA IN he ooyerned by the merits OF