Opinion
[Syllabus Material] [Syllabus Material] 15 Cal. 260 at 264.
Original Opinion of January 1860, Reported at: 15 Cal. 260.
Order affirmed.
COUNSEL
The injunction was granted on due notice, and this appeal should have been taken from the order granting the injunction, and not from the order refusing to dissolve it.
J. C. Zabriskie and L. Sanders, Jr., for Appellants.
Jackson Temple, for Respondent.
Shattuck, Spencer & Reichert, also for Respondent, cited Natoma Water and Mining Co. v. Clarkin, 14 Cal. 544.
JUDGES: Cope, J., at the July term, 1860, delivered the opinion of the Court. Baldwin, J., concurring.
OPINION
COPE, Judge
The original injunction was granted July 26th, 1859, ex parte, on the complaint, and was dissolved on the coming in of the answer, October 26th, 1859. The appeal from this order, taken Nov. 11th, 1859, is the subject-matter of the foregoing opinion. The Court below, in the order dissolving the injunction, authorized an amended complaint to be filed, and a fresh application for injunction to be made, upon ten days' notice to defendants; and in the meantime restrained defendants, until the motion for the second injunction could be determined. This second motion was made on the amended complaint, and an injunction granted Dec. 5th, 1859--the decision of the Supreme Court not being rendered until March, 1860. No appeal was taken from the order granting this second injunction. But subsequently, after the decision of this Court, defendants moved the Court below to dissolve it, which motion that Court refused, on the ground that, having been granted on notice, it was beyond the power of the Court to dissolve it--according to the decision in Natoma Water and Mining Co. v. Clarkin, 14 Cal. 544 --the Court admitting that it would not have been granted had the decision of the Supreme Court on the first appeal been known. From the order refusing to dissolve this second injunction, this appeal is taken.
Cope, J., at the July term, 1860, delivered the opinion of the Court--Baldwin, J., concurring.
This is an appeal from an order refusing to dissolve a temporary injunction. The injunction was granted upon an order to show cause, and the Court therefore properly refused to dissolve it. If it were granted upon insufficient grounds, the remedy was by appeal. This we have held in several cases.
Order affirmed.