Hefflon v. Bowers

Paterson, J.

— The injunction in this case was granted on the ex parte application of plaintiff, and was based upon the verified complaint and an affidavit.

Thereafter, the defendant presented several affidavits to the court, showing that the injurious effects complained of by plaintiff were not due, as alleged, to defects in the sewer, and that the break in the sewer, which was alleged to be the principal source of the nuisance, had been repaired since the issuance of the injunction.

Upon these affidavits, and the complaint and affidavit of plaintiff, the court, on motion of defendant, without notice to plaintiff, and without giving him an opportunity to reply, dissolved the injunction. Respondent claims that plaintiff was not entitled to be heard on the motion to dissolve, because the injunction was issued without notice. Section 937, Code of Civil Procédure, upon which he relies, provides that “ an order made out of court, without notice to the adverse party, may be vacated or modified without notice by the judge who made it; or may be vacated or modified on notice in the manner in which other motions are made.” The manner of procuring a revocation of the order granting an injunction, however, is prescribed in section 532, Code of Civil Procedure, which reads as follows: “ If an injunction be granted without notice, the defendant, at any time before the trial, may apply, upon reasonable notice, to the judge who granted the injunction, or to the court in which the action is brougnt, to dissolve or modify the same. The application may be made upon the complaint and the affidavit on which the injunction was granted, or upon affidavit on the part of the defendant, with or without the answer. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the injunction was granted.”

The contention of respondent that the last clause of this section applies only in cases where the injunction has been granted after notice to the defendant cannot, we think, be maintained. There is no such limitation in the language of the section, and there is no reason for the application of the rule prescribed by section 937, where the facts are like those in the case at bar. So long as the defendant rests his right to have the order vacated or modified upon the same matters which were considered by the court in granting it, there can be no good reason for allowing the plaintiff to be heard; but when the defendant goes further, and offers evidence to overcome the plaintiff’s prima facie case, and especially in cases like this, where he relies upon the fact that since the issuance of the injunction the principal thing complained of has been abated, it becomes necessary, by virtue of both the reason and the letter of the rule, that-the plaintiff should be permitted to support with additional evidence the prima facie case, which is all he was required to make in the first instance. (Falkinburg v. Lucy, 35 Cal. 52; Delger v. Johnson, 44 Cal. 182; Hiller v. Collins, 63 Cal. 235.) Any other construction of the two sections quoted above must result in annoying repetitions of the application upon additional affidavits in support thereof, and a trial by piece-meal of most important-matters.

The authorities cited by respondent state the general rule applicable to ex parte orders, and speak of it as applicable to orders for the dissolution of injunctions; but each one is a case in which the application for revocation of the order was based upon the showing made by the plaintiff.

In Borland v. Thornton, 12 Cal. 440,. it is true, the court said in effect that the provision especially applicable to injunctions is not inconsistent with or a limitation upon the more general language of section 334, Practice Act (Code Civ. Proc., see. 937), but the decision in that case was made upon the ground that the injunction had been improvidently issued on a complaint barren of all equity to support it. The defendant moved to vacate on the complaint and affidavit of plaintiff, yet the court said that while it was “ competent for the judge to vacate or modify the injunction without notice,, it was not the better practice, and should never be done except when from the urgency of the case it was necessary to guard against serious loss, which sometimes might be occasioned by the delay incident to serving notice, and except where the injunction has been improvidently granted upon a complaint disclosing no ground whatever for equitable relief, as in the present case.”

The point made- by respondent, that the appeal should . be dismissed because the clerk’s certificate showing what papers were used at the hearing is not sufficient in the-absence of a certificate of the judge or a bill of exceptions, is without merit. In his application for a revocation of the order,, the defendant, by his attorneys, Messrs.. Luce and Henderson, states that “the motion is made on the petition and affidavit on which the injunction was issued, and upon the appended affidavits on the part of the defendant, showing that no nuisance exists, and the security is insufficient.” The order of the court granting the motion to dissolve states that upon the hearing the defendant read in evidence—in addition to the papers upon which .the .injunction was issued—the affidavits of T. L. Magee, W. W. Bowers, P. 0. Remondino, and T. 0. Stockton. It becomes unnecessary to say, therefore, whether the .affidavits set forth in the transcript are the same that were used at the hearing. It clearly appears from the written application of defendant, and from the order of the court that defendant did, in fact, use affidavits on his own behalf “showing that no nuisance exists,” and the order must have been granted upon the affidavits of the defendant, inasmuch as the papers on which the plaintiff procured the injunction establish a prima facie case for the issuance thereof.

The question .as to who made the affidavits is not material. They contained matters that were material and considered by the court, and plaintiff should have been permitted to reply thereto.

The '.order is reversed.

McFarland, J., McKinstry, J., and Sharpstein, J., concurred.