delivered ike opinion of ike Court.
Powers and Ashley filed their bill in chancery for relief, and an injunction to restrain T. & C. Waters from prosecuting an action at law against them on a bond, which they had executed to Richard B. Heath, and which the said Heath had assigned to the said Waters.
An injunction was granted, staying the proceedings at law. The injunction was prayed for and granted before there was a judgment in the suit at law. T. & C. Waters and others filed their answer to the bill, and thereupon the court dissolved the injunction staying the proceedings at law, and at the same time, and in the chancery suit, entered up a judgment in the case at law, whose proceedings had been stayed by the injunction.
It is only necessary to state this case, in order to show the irregularity of the proceedings in the court below. A suit is pending at law; an injunction is obtained to restrain proceedings in the suit, before there is any judgment; upon the coming in of the answer, the court dissolved the injunction, and then, as chancellor, entered a decree in the suit at law for the debt sued for, and awarded an execution.
The duty of the court was plain. After dissolving the injunction, the parties should have been left to proceed at law in the suit, from the prosecution of which they had been enjoined. So soon as the injunction was dissolved, and damages awarded, the court, as a court of chancery, had nothing to do with the case.
It may be appropriate to remark here, than when , an injunction is asked for, staying, before judgment, proceedings in a suit at law, a court of chancery grants the injunction upon terms only, so as to leave the party at liberty to proceed to trial and judgment, unless a discovery is sought for to aid a defence at law, or the answer in some other way is necessary on the trial. (Ham vs. Schuyler, 2 Johns. Ch. Rep., 240; Smith’s Chancery Practice, title, “Injunction.”
It was objected, that an appeal did not lie upon an order dissolving an injunction. This Court ¿so.held in the case of Tanner vs. Irwin and Cottle, (1 Mo. Rep., 65.) It is not intended, by any thing before said, that the mere order dissolving the injunction is erroneous.
Had the court below confined itself to a simple dissolution of the injunction and an award of damages, the decree would not be erroneous; but under the circumstances, it will be reversed; the reversal, however, not to have the effect of reviving or continuing the injunction.
Decree reversed.