National Bank v. Printup Bros.

Bleckley, Justice.

The case which is here 'is but a small twig from a very large tree. The sole plaintiff in error is the National Bank of Augusta, and Printup, Brothers & Co., are the only defendants in error. The plaintiff in error was a party defendant to the original bill below, but the defendants in error were not parties to that bill on. either side. They were brought into court as defendants, with others, to a cross-bill built up in the answer which the.plaintiff in error filed to the original bill. On a prayer for injunction contained in this cross-bill, Printup, Brothers & Co. were enjoined from doing various things, among ’them, from prosecuting certain common law proceedings to which they were parties, but to which the National Bank.of Augusta was no party. The injunction was but interlocutory, and they moved to dissolve it on certain grounds, which motion being denied, they excepted pendente lite, and it remained operative until the time arrived for demurring to the cross-bill by way of general defense to the whole relief sought against them. They then filed a demurrer, embracing substantially the same grounds on which their motion to dissolve the injunction had been predicated. When the court came to adjudicate upon the demurrer, the same was unconditionally sustained and the cross-bill was, as to them, dismissed. This, and only this, is the subject-matter of the present writ of error.

1. In behalf of the plaintiff in error fit is insisted, first, that any and all matters which were adjudged insufficient to dissolve the injunction when the motion for dissolution was determined, become res adjudioata with respect to the subsequent demurrer, no less than with respect to the motion ; and that what is not cause for dissolving a temporary injunction is, a fortiori, no cause for denying all relief whatsoever, and dismissing the bill at the hearing of the case on demurrer. If this be a correct position, it would follow that in all cases where a temporary injunction is granted, and the grant is acquiesced in, no subsequent demurrer to the whole bill could be sustained. An injunction cannot be ordered for anything which is not apparent on the face of the bill, and the mere grant of an injunction is an adjudication that the bill is sufficient to warrant it. Whether the defendant appears or not, makes no difference as to the binding nature of this adjudication, for under the present practice established by statute in this state, he has to be notified of the application, and of the time and place when and where it will be heard; and the object of the notice is, that he may appear and resist the application. According to every principle of re¡ adjudicate/,, a defendant duly served with the prescribed notice is as much bound by what is adjudged against him on the plaintiff’s pleadings, where he fails to appear, as he is where he appears and calls in question the sufficiency of those pleadings. But what court has ever held, or ever can hold, that the mere grant of a temporary injunction, with or without appearance and resistance by the defendant, will, if not carried to a reviewing court and there reversed, conclude the defendant upon the merits of the bill should he afterwards, and in due time, demur? And if the defendant is not cut off from demurring by the mere grant of the injunction, why ought he to suffer this consequence if the grant be followed by an ineffectual motion to dissolve? Once adjudicating the sufficiency of the bill for a temporaiy injunction ought, it would seem, to settle the matter as firmly as twice adjudicating it. Where the doctrine of res adjudicata applies at all, it is not less applicable after a first judgment, unreversed, than it is after a second to the same effect. The truth is, that the purpose of an interlocutory injunction is wholly provisional; it is preliminary and preparatory; it looks to a future and final hearing, more deliberate, solemn and complete than any which has been had, and while contemplating what the result of that hearing may be, it by no means forestalls it, or settles what it shall be. Under such an injunction, the defendant’s free agency is suspended but not terminated ; though paralyzed tempoi arily, it does not follow necessarily that his paralysis is to become permanent and incurable. In one word, there is, with respect to the merits of the main case, nothing final either in granting or keeping on foot an interlocutory injunction; and the rigid^ stationary condition which any proper conception of res adfiidicata involves, arises out of judgments only which are final in their nature. High on Inj., §§3, 4-, 5; 21 Ill., 605 ; Freeman on Judg., §251; 4 Bibb, 556; 22 Eng. Ch. R., (2 Phillips) 597; 41 Ga., 544; 17 Ib,, 558 (12), 249 ; Code, §§3220, 3223. Somewhat contra in bearing, 5 Martin, N. S., 120; 8 Rob., La., 200 ; 25 Ill., 257.

2. Among the grounds of the demurrer are that the cross-bill has no equity as against Printup, Brothers & Co., and that there is a complete remedy at law. All that Printup, Brothers & Co. have done they had a legal right to do, and we do not see that they have acted contrary to equity, or good conscience. They sued their debtors in a court having jurisdiction, and garnished certain persons to appear and answer in connection with that suit. If the assests which they seek to reach by these'garnishments do not belong to their debtors, but to certain trustees and an assignee, why should not the trustees and the assignee claim them under section 3541 of the Code? Among the garnishees are the trustees themselves, and the attorney or agent of the assignee. Why should it devolve on the National Bank of Augusta to bring Printup, Brothers & Co. into equity, in order to aid the trustees and the assignee in the performance of their duties ? It is not alleged that the trustees are insolvent, and if they fail in their duty, they can, it is to be presumed, respond to those who may be injured. To break up lawful proceedings commenced by Printup, Brothers & Co. in Floyd, the county in which they themselves reside, and force them to take part in a pending suit in Richmond county, in which they have no wish to participate, is a very strong exertion of power. Nothing so very vigorous and energetic should be done without a clear necessity for it. And be it observed, that none of those who are garnished, not even the trustees or the assignee, are in this court, asking that it shall be done. We think the court below did quite right in sustaining the demurrer, and allowing Printup, Brothers & Co. to go without a day.

3. The leave of absence granted to brother Miller was no cause for 'withholding judgment on the demurrer until his return, or until his leave expired. The demurrer having been argued and submitted before the leave was granted, the work of counsel was finished, and in that which remained for the court to do, the presence or absence of counsel would make no difference. According to the usual •course of practice, as we understand it, there could have been no reasonable expectation that the court would delay the mere announcement of a judgment because the counsel of one of the parties was absent on leave.

4. Nor was there any error in not making some further order in connection with sustaining the demurrer, and dismissing the cross-bill as to Printup, Brothers & Co. The entire hearing was upon the demurrer to the cross-bill, and the consequences of sustaining the demurrer were not for adjustment as a part of the judgment, but were for the remaining parties to cope with in subsequent stages of the cause.

Judgment affirmed.