delivered the opinion of the Court.
Appellant filed in the Circuit Court his bill alleging the borrowing by him from D. H. Tolman, one of the appellees, of the sum of $1,250, and that he, appellant, gave his judgment note therefor for the sum of $1,500; that the said note has been frequently renewed, and said Tolman now has appellant's past due note so given for the sum of $1,500 although appellant has made payments of usurious interest and other payments on account of said loan, to more than the entire amount thereof, viz., has paid altogether upon said loan, the sum of $1,987.50, being much more than the principal and lawful interest upon the sum borrowed amounts to. Appellant also alleges a certain purchase by him from said Tolman of stock in a certain corporation, the arrangement for said purchase being, it is charged, but a device to enable said Tolman to obtain usurious interest.
Appellant obtained an injunction restraining' appellees from assigning or transferring the note made by appellant. To the bill a demurrer was filed, the same being called up for hearing. Appellant not appearing, the demurrer was sustained, and the bill dismissed for want of equity.
Appellant at the same term appeared and asked the court to set aside the order of dismissal. This the court refused to do.
The bill shows no ground for the interposition of a court of equity. Appellant can make whatever defense he has to the note, in a suit at law, if one shall be brought. The note being past due, any assignee thereof will take the same subject to appellant’s rights.
When a party obtains a temporary injunction, he is bound to be at all times ready to appear and maintain" his right to the same. The party enjoined has a right at any time to take steps to relieve himself from the restraining order, and the complainant can not, by a failure to appear, delay a hearing asked for by a party enjoined.
As the decree dismissing for want of equity might operate to the prejudice of appellant in a suit at law, the order of dismissal will be modified by making the decree of dismissal without prejudice. Appellee will recover his costs in this court.
Decree modified so that dismissal of bill be without prejudice.