Unknown County MI Archives Court.....Kellogg, V. Barnes 1837
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File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 7:49 am

Source: Cases In Chancery
Written: 1837

CASES IN CHANCERY
SECOND CIRCUIT.


Kellogg v. Barnes.

Injunction dissolved on default. Where the complainant had due notice of a 
motion to dissolve an injunction, and he neglected to appear and oppose the 
motion, the defendant was permitted to take his order dissolving the 
injunction with costs.

Motion to dissolve an injunction.

B. F. Cooper, for defendant, moved, in tendering admission of due service of a 
notice of the motion, that the injunction issued in this cause be dissolved 
for want of equity in the bill. No counsel for the complainant appearing to 
oppose, Cooper contended that the practice in such cases was, or should be, 
that the motion be granted with costs, without the papers being read or any 
further account given to the court than simply to state the application to be 
made, and show by admission or affidavit that notice had been brought home to 
the opposite party. (1 Smith's Pr., 66; Rule 62, 69; 2 Caines' R., 379, 380; 3 
Caines' R., 82; 1 Hoff. Pr., 551; 1 Dunlap's Pr., 327, 350-352.)

H. N. Walker, as amicus curioe, suggested that the former practice of the 
court had been to look into the papers as if they had been submitted on 
argument.

The Chancellor.—Where a party, after service of notice of motion, neglects to 
appear and oppose, the court say, by not appearing he consents to the 
application. (Ekhart v. Dearman, 2 Caines, 379.) Such, also, appears to be the 
practice in England.

The defendant may take the order that the injunction be dissolved with costs, 
stating in the order, however, that no one appeared on the motion to oppose.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

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