Swift v. Shepard , 64 Cal. 423 ( 1883 )

Sharpstein, J., specially concurring.

—It was early held in this State that an injunction is not dissolved or superseded by the taking of an appeal from the order granting it. (Merced Mining Company v. Fremont, 7 Cal. 130.) That case has not been overruled, and the statute, in respect of the question now raised, has not been substantially changed. The only question raised by the appeal is whether the injunction was properly granted, and that question must be determined upon the record. Until so determined the presumption is in favor of the correctness of the judgment of the court below. We could not grant this motion without at least modifying the judgment appealed from.

If the judgment be reversed, it will then be apparent that the appellant was deprived of the use of his property by the granting and continuance of the injunction. But if we grant this motion and finally affirm the judgment, it will be equally appar-ent that the respondent was deprived, in the mean time, of the use of his property.

There is nothing in this case which materially distinguishes it from most of the cases in .which appeals are taken from orders or judgments granting injunctions.

McKee, J., and McKinstry, J., concurred in the opinion of Mr. Justice Sharpstein.