BLOH PENNOH, Appellant, v. WILLIAM PENNOH, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 21, 1959. Decided January 14, 1960. 1. In a civil action where a sufficient description is given, a misnomer is immaterial. 2. A general appearance constitutes waiver of right to raise a plea of misnomer in subsequent pleadings. 3. Injunction will issue only at the instance of a party possessing right or title to the interest to be protected. 4. Pending an action seeking specific performance of a contract to convey land, an injunction may be granted to preserve the property in status quo until final determination of the action. 5. An order dissolving or extending a temporary injunction is not a final order for purposes of appeal. On appeal from an order denying a motion to dissolve an injunction pending final determination of an action between the same parties, seeking specific performance of a contract to convey real property (Pennoh v. Pennoh, 13 L.L.R. 48o [196o] ), order affirmed. T. Gyibli Collins for appellant. 0. Natty B. Davis for appellee. MR. JUSTICE MITCHELL delivered the opinion of the Court. William Pennoh sued out an action of injunction in the Circuit Court of the Sixth Judicial Circuit, Montserrado County, on July 16, 1957, against Bloh Pennoh, defendant, enjoining and prohibiting the said defendant from molesting, disturbing or evicting him or his tenant in occupancy from his dwelling house during the pendency of an action for specific performance of a contract to convey land, in which action he was plaintiff and the LIBERIAN LAW REPORTS 505 aforesaid Bloh Pennoh was defendant. Pleadings in the suit progressed as far as the rejoinder and rested ; and thereafter defendant below, now appellant, filed a motion to dissolve the injunction. The court, after hearing the motion, rendered an order on January 30, 1958, extending the injunction pending final determination of the specific performance suit then on appeal before this Court, to which suit the injunction was ancillary. To this order, exceptions were taken and the case has come before us on a regular appeal upon a bill of exceptions containing the following three counts : “1. Because defendant says and contends, that Your Honor erred by dismissing the answer filed in said cause without regard to the fact that plaintiff’s reply failed to deny the plea of misnomer as raised in Count `I’ of said answer, and that the reply of plaintiff failed to traverse the respective pleas of (a) non-joinder of the party defendant in the summary ejectment suit then sought to be enjoined ; of equity in the bill of complaint; and the (b) th issue of fraud raised in said plea. (c) e “2. And also because defendant says and contends that Your Honor grossly erred by denying the motion to dissolve the preliminary injunction when said motion was merely opposed by a bare denial of the law and fact, without a showing that the plaintiff had equity in said bill, or that his attempted acts to deprive defendant of her bona fide property were not fraudulent. “3. And also because defendant says and contends that Your Honor grossly erred by rendering a final decree in said cause, and perpetuating the said injunction without hearing evidence in said cause, to which said final decree the defendant excepted and prays an appeal to the Honorable Supreme Court of Liberia, at its ensuing March, 1958, term. When this case was called for hearing, both parties were 506 LIBERIAN LAW REPORTS represented by counsel who ably presented their respective arguments ; and we; having patiently heard them, will now proceed to review the issues raised in the several counts of the bill of exceptions. As to the plea of misnomer raised by the defendant below now appellant, this Court has been placed in a quandary to know how the appellant expected to benefit under such a plea. The records before us reveal that defendantappellant merely filed a general appearance acknowledging the name by which she had been sued, that is to say, “Bloh Pennoh,” without any reservations through a special appearance, as the law requires. In his argument before this bar, appellant’s counsel cited the case of Kruger v. Johns, [1913] LRSC 2; 2 L.L.R. 89 (1913) , and merely quoted that portion of this opinion which he felt would drive his point clear without regard to another part of the selfsame opinion, which contradicted his point of argument; and we hereunder quote that other portion : “On inspecting the records in this case, we find that the libellee in the court below was sued and appeared by the name attached to the assignment of errors and that no objections were raised to his so appearing, by the libellee. We must here observe, that in civil actions, if a sufficient description is given, the misnomer is immaterial.” Kruger v. Johns, supra, at 2 L.L.R. 90 (1913). Appellant, defendant below, having appeared in the name by which she had been sued, it does seem to us that she waived her legal right to raise the plea in her subsequent pleadings ; moreover, she having been sufficiently described by the plaintiff in his complaint as the defendant against whom specific performance proceedings had been instituted for the very parcel of land on which plaintiff had erected his dwelling house–which she never denied –we are of the strong opinion that, appellant, defendant below, was sufficiently described according to law, and LIBERIAN LAW REPORTS 507 that, therefore, the plea of misnomer raised by the defendant below, now appellant, is not well taken and cannot be sustained by this Court. The next point raised is that of non-joinder of the defendant in the summary ejectment suit. Plaintiff in the injunction proceedings was endeavoring to conserve the right to the premises under the oral agreement between himself and the defendant, which agreement the defendant had disavowed by instituting summary ejectment against his tenant, regardless of the suit of specific performance then already filed and pending before the court. So then, there was no legal ground for plaintiff’s tenant to have been joined in this suit when it was separate and distinct. This point seemed to have been conceded by the appellant’s counsel when arguing before this bar, since, although it was made a point in his brief he made no reference to it in his argument; however, we feel it necessary to pass upon it. The injunction being ancillary to the specific performance suit, and not to the summary ejectment suit, and plaintiff’s tenant not holding a unity of interest in the subject matter of specific performance, but rather, holding a mere possible or contingent interest as tenant of the plaintiff now appellee, plaintiff’s tenant was not a necessary party. Therefore, he should not have been joined as a party plaintiff. Proceeding further, it would seem that, since the bill of complaint did seek to enjoin the defendant below from molesting or evicting the plaintiff from the enjoyment of the right that he had enjoyed without interruption for quite a long period of years, it is obvious that there was sufficient equity in the complaint in Chancery to have warranted the perpetuation of the suit during the pendency of the main case at law. The issuance and perpetuation of a writ of injunction lie within the sound discretion of the court. The law frowns against an abuse of this discretionary power ; but 508 LIBERIAN LAW REPORTS when it is exercised according to sound principles of law we will not infringe upon the equitable rights of either of the parties. It goes without saying that, the court below having found sufficient merit in the main suit for specific performance, and having decreed against the defendant, who is the same as the defendant in the injunction proceedings, any effort manifested on her part to evict plaintiff or his tenant before final determination of the cause of action should have been enjoined. Again, there is the settled principle of law that: “Pending a suit in equity or at law, an injunction may be granted to preserve in statu quo the property involved until a final settlement of the right or title.” 22 CYC. 821 Injunctions. Further recourse to the records in the case shows that the lower court entered an order denying the motion to dissolve, which, in form is tantamount to an imperfect judgment, based upon the issues of law set forth in the aforesaid motion to dissolve the preliminary injunction. Such an order is not considered in law to be a final decree, as appellant avers in Count “3” of her bill of exceptions. Hence there was no necessity for the court below to have gone into the hearing of evidence before rendering its said order denying the motion and perpetuating the injunction pending the final determination of the suit in specific performance–the main suit to which the action of injunction was ancillary. Counts “2” and “3” of the bill of exceptions are therefore dismissed, and the ruling made by the court below is hereby affirmed with costs against the appellant. And it is hereby so ordered. 2M-1-med.