Heyl v. City

Opinion delivered February 7, 1874, by

In this case the usual ex parte iujunction was granted, and after a hearing, continued, more than a year ago. On Tuesday last the cause was set down for argument upon a motion to dissolve. No answer has been put in, nor has any step been taken by the defendant since September 28th, 1872, when the order continuing the special injunction was made. I declined to hear the motion to dissolve, and continued the cause until the next equity motion day, for the reason that such application could not properly be made .until after answer filed. Subsequent reflection has satisfied me that in this I was right. It is true, some of the text books say, that a motion to dissolve may be made before answer; but this manifestly applies to ex parte injunctions, and not to cases where there has been a hearing. Otherwise we might be constantly employed in reviewing our own decisions. It is purely a question of practice, and 'the correct rule jn such cases will be found in Adams' Equity, 196, 359.

If the defendant put in an answer on or before the next equity motion day, they will be in a position to move to dissolve the special injunction.