Mastick v. Thorp

By the Court, Sanderson, J. This is an appeal from an order denying a motion to dissolve an injunction. The motion was made on the complaint and answer unaccompanied by any affidavits upon either side.

The action was brought to restrain the defendant by injunction from enforcing, by execution or otherwise, a certain judgment which he had obtained in an action of ejectment against the plaintiffs’ grantors, and to open and set the same aside, or in other words to obtain a new trial in that action.

The facts, as detailed in the complaint, are substantially as follows:

[446]An action was brought by the defendant in this case to recover the possession of the premises in question against one Donnelly, who was in possession as tenant of one Cheney, who intervened and employed counsel to defend the action. Thereafter, and pending the action, Cheney sold and conveyed to the present plaintiffs, who thereupon became entitled, under the sixteenth section of the Practice Act, to continue the defense of the action in the name of Cheney or to cause themselves to be substituted in his place. At the time of their purchase, which was the 4th of December, 1863, the plaintiffs had full notice of the pendency of the action, but they took no steps in regard to its further defense, and there was no covenant on the part of Cheney to further defend the title. They neither retained the counsel who had appeared for Cheney, nor did they inform the City Attorney of the pendency of the action, nor did they employ other counsel. In short, they took no steps whatever to defend the action, but rested entirely upon the supposition or belief, as they allege, that the attorneys who represented Cheney would continue, after the purchase, to represent them, notwithstanding, as they admit, no request to that effect was made by them and no fee paid or offered. Some seven months after the purchase, the same being regularly on the calendar, the action was brought to trial by the plaintiff, (defendant in the present case,) but no one appeared on the part of the defense, and the trial was altogether ex parte and resulted in favor of the plaintiff. The present plaintiffs had no actual notice or knowledge of the trial before or at the time it took place. When they learned that a trial had been had, whether in time or too late to move for a new trial, does not appear, and no reason is given why a motion for a new trial was not made.

In view of the foregoing facts, in connection with a general allegation to the effect that their title is good, while that of the defendant is worthless and pretended, the plaintiffs claim the interposition of a Court of equity, and allege that they are entitled to the relief sought by them on the ground of surprise.