State v. Duluth Street Railway Co. , 47 Minn. 369 ( 1891 )

Gtleillan, C. J.

One Richardson brought an action in the district court in the eleventh district against the1 Duluth Street Railway Company, and at the commencement of the action procured from a judge of the court an ex parte order for an injunction against the defendant, and the injunction was issued and served, and the defendant thereupon procured an order to show cause why the injunction should not be vacated, returnable before the court, and on its return the court made an order vacating and dissolving the injunction. From this order the plaintiff in the action appealed to this court, and executed and filed the proper stay-bond, as provided in Gen. St. 1878, c. 86, § 10-.

The only question brought here by this proceeding is, what was the effect of the appeal and stay upon the order vacating the injunction? Did it suspend the operation of that order, so as to leave the injunction in force? This must be determined by the statute. Section 10 provides; “Such appeal, when taken from an order, shall stay all proceedings thereon, and save all rights affected thereby,” if the appellant shall execute the bond required. No class of orders from which appeal is allowed is excepted from this provision. Whether, because of the possible hardship in some cases to the party procuring an order from the suspension of its operation, any class of orders ought to be excepted from the provision, is for the legislature, and not for the court, to say. There is no room in the statute for the distinction suggested by the relator, between what might be termed “active orders,” or those contemplating or directing something to be done to make them effectual, and what the counsel designates “passive orders,” which of themselves, and without anything further, effect the desired end. Perhaps that distinction might be claimed if the statute stopped with the clause, “shall stay all proceedings thereon.” But those words, with the words, “and save all rights affected thereby,” show more than the intent to merely arrest affirmative action on the order; show the intent that the order, when appealed from and stayed, shall not affect any rights, — in other words, that it shall be inoperative pending the appeal. In this case the right affected by the order was the right to the continuance and operation of the injunction. The appeal and stay saved that right so that it continued, notwithstanding the order appealed from.

It is also claimed that an ex parte order for an injunction is in its character only a temporary restraining order to continue only until otherwise ordered, or until both parties can be heard. In Sullivan v. Weibeler, 37 Minn. 10, (32 N. W. Rep. 787,) where the order by its terms was to continue only until the hearing and determination of a motion for an injunction, it was held that the order did not cease because the court denied the motion for an injunction, but because by its terms it was to continue only till a determination of the motion, however it might be determined; and that its operation was not affected by the terms of the order denying the motion, and not saved by an appeal from that order with a stay. The ex parte order for the injunction in this case was not so limited by its terms. ■ The injunction continued until it was dissolved by the order appealed from, and it ceased because so dissolved. The right to it was affected, not because the motion to dissolve was determined, but because it was granted. The order dissolving it operated directly on the right to it. To hold that an ex parte order is temporary, and to continue only till a hearing, though it is not so by its terms, would be to hold, in effect, that the court or judge cannot grant ex parte any but temporary orders, — orders to continue only till a hearing. It might be better to have that the rule, but there is no warrant in the statute for claiming that it is so.

The order removed here by certiorari is affirmed.