Sullivan v. Triunfo Gold & Silver Mining Co. , 33 Cal. 385 ( 1867 )

By the Court, Sawyer, J.:

The respondent moves to dismiss the appeal, on the ground that no appeal lies from an ex parte order made by the Judge at Chambers granting an injunction. Section one hundred eleven of the Practice Act authorizes a Judge at Chambers or a County Judge to grant the order, “ and when made, it may be enforced as the order of the Court.” Thus, although made by the Judge, it virtually becomes the act of the Court. The order is an order granting an injunction, when made ex parte as well as when made on notice, and may be enforced in the same way. Section three hundred forty-seven provides, that an appeal may be taken “ from an order granting or dissolving an injunction.” The language is explicit, and clearly covers every case of an order granting an injunction. It does not say from an order granting an injunction made on notice, or upon order to show cause. ¡Nothing is said about an order adjudicated after a contest, or after both sides have been heard. The appeal is from “ an order granting an injunction,” in the broadest terms, without limit or qualification. There is nothing in any other portion of the statute, so far as we have been able to discover, that in any way limits the scope of this express provision of the statute. It is true, that under section three hundred thirty-four, where an ex parte order has been made, the Judge who made the order is authorized to vacate or modify it ex parte. And under section one hundred eighteen, the party restrained by an injunction granted without notice may, upon notice, apply to the Judge who granted it, or to the Court, to dissolve or modify it. These remedies are in nowise inconsistent with the right to appeal without any such previous application. The remedy may be only cumulative and concurrent. In Borland v. Thornton, 12 Cal. 448, the general provision of section three hundred thirty-four, that “ an order made, out of Court, without notice to the adverse party may be vacated or modified without notice,” was held to be applicable to ex parte orders granting injunctions as well as to other orders. Yet there was a special provision relating to the particular subject of injunctions in section one hundred eighteen, that, if “ an injunction be granted without notice, the defendant, at any time before the trial, may apply upon reasonable notice to the Judge * * or the Court * * to dissolve or modify the same.” The provision of section one hundred eighteen, especially applicable to injunctions, was held not to be inconsistent with, or a limitation upon, the more general language of section three hundred thirty-four. The Court decided that either mode might be pursued. With much greater reason it may be held, that the provisions of sections one hundred eighteen and three hundred thirty-four are not inconsistent with, or limitation upon, the provisions of section three hundred forty-seven allowing appeals from “ orders granting injunctions.” Besides, in 1851, when sections one hundred eighteen and three hundred thirty-four were adopted, there was no appeal in any case from orders granting injunctions. The remedies under those sections were the only remedies available before final judgment in the action. The amendment allowing appeal from the order granting the injunction was not adopted till 1854. This is a subsequent provision, and clearly indicates an intention to provide a further remedy. It is said that an ex parte order granting or refusing an injunction is not required to be entered on the minutes of the Court. If this be so, it is equally true with respect to similar orders made by the Judge at Chambers, on notice or upon order to show cause. In both cases the order is made by the Judge at Chambers, and is enforced as the order of the Court. The argument, then, bears with as great force against an ajipeal' in the latter, as in the former cases.

It is said that no case can be found in the California Reports, in which the right to appeal from an ex parte order granting an injunction has been determined, and that this fact indicates a practical construction of the Act against the right. But the absence of such a determination may easily be accounted for upon other principles. Ordinarily, when time is important, the party temporarily enjoined would seek the quickest mode of relieving himself from the order; and obviously, that would be to apply at once to the Judge who made it, either without or upon notice, as the exigencies of the case might seem to render most advisable, to dissolve it. Probably in ninety-nine cases out of a hundred this would be the course pursued. But the action of the Judge, whatever it might be upon the application, would not be final, for whether he dissolved, or refused to dissolve, the injunction, the losing party would be entitled to appeal. A case might, therefore, arise in which it would he more advantageous to the party restrained to have a speedy decision from the Court of last resort, which would be final, than to obtain for the time being a dissolution of the order of the Judge who made it with a right of appeal, and the control of the appeal and consequent power to delay a final determination remaining in the party seeking the injunction. The statute allowing an appeal in the first instance was, doubtless, designed to provide for such cases. However this may be, the causes indicated are amply sufficient to account for the fact that appeals are much more frequently taken after an application to dissolve than before. But there are two cases, at least, in which the right of appeal from an ex parte order granting an injunction has been recognized. In the case of Martin v. Travers, 7 Cal. 253, an ex parte injunction having been obtained, and a motion to dissolve made and denied, an appeal was taken from the order refusing to dissolve the injunction. The Court held, that, under the provisions of sections three hundred thirty-six, and three hundred forty-seven, of the Practice Act, as they then stood, no appeal was allowed, and said: “ The appeal should be taken from the order granting an injunction.” The decision was rendered in 1857, and sections three hundred thirty-six and three hundred forty-seven, as amended in 1854, then in force, only provided for an appeal “ from an order granting or dissolving an injunction.” The amendment allowing an appeal “ from an order refusing to grant or dissolve an injunction,” was subsequently made. It is true that it was only necessary to decide that under the law as it then stood, no appeal could he taken from an order refusing to dissolve the injunction. But the question immediately associated with the question decided, at once arose in the minds of the Court. Is there, then, no remedy in case of refusal to dissolve ? And if there is, what is it? Hpon looking at the statute, the answer was obvious. There is a remedy, for an appeal lies “ from the order granting an injunction.” It is so expressly provided. ;, The Court, therefore, at once said the appeal must be taken from the order which created the mischief—the order in which the error was first committed. And this must be correct, or there was no remedy at all so far as the provisional injunction was concerned. There was no means of correcting the second error by appeal from the order refusing to dissolve, and if there was no appeal from the order granting the injunction, it was only necessary to procure the order ex parte and a refusal to dissolve, and the injunction would remain till the final disposition of the cause, whether properly granted or not—a condition of things which we do not think was contemplated, and the Court in the case cited was evidently of the same opinion. Again, in The City and County of San Francisco v. Beideman, the County Judge granted an injunction ex parte, and denied a motion to dissolve. The defendant appealed from both the order granting, and the order refusing to dissolve, the injunction. It is so stated by the Court, and it so appears in the record of the case. And the judgment is, that the orders appealed from are reversed,” etc. Thus the appeal from the order granting the injunction was both entertained and determined, as well as the appeal from the order refusing to dissolve. The motion to dissolve was based on the answer, supported by numerous affidavits. In deciding the case, the Court do not discuss the answer and affidavits, but base their decision on the utter want" of equity in the complaint—the ground especially applicable to the appeal from the order granting the injunction. (17 Cal. 461, 464.) The appeal at all events, was entertained and decided. The propriety of the appeal does not, it is true, appear to have been questioned. While in one point of view this fact may detract somewhat from the weight of the case as authority, yet, in another, the fact that it was not questioned by the able counsel who argued the case, would seem to indicate that they had no doubt that the order was appealable. Thus, it will be seen, that the right to appeal has been recog- ,} nized in two cases, and we think it plainly authorized.Jijf' the express provision of the statute, and but for the fact that the point is made and earnestly pressed by experienced and able counsel, in an elaborate and plausible argument, we should n.ot have deemed it requisite to discuss the question so fully.

Under the views expressed the motion to dismiss the appeal must be denied, and it is so ordered.