Porter v. Speno

SULLIVAN, J.

This is an appeal from an order denominated an order granting an injunction. The following is a copy of the order.

“The plaintiff in the above-entitled cause, having commenced an action in the District Court of the Second Judicial District, of the State of Idaho, in and for Nez Perce County, against the above-named defendants, and having prayed for an injunction against the said defendants, requiring them to refrain from certain acts in said complaint and hereinafter more particularly mentioned, on reading the said complaint in said action, duly verified by the oath of said plaintiffs, and considering certain affidavits filed on behalf of plaintiffs and defendants herein, and considering certain documentary evidence, and it satisfactorily appearing to me therefrom that it is a proper case for an injunction, and that sufficient grounds exist therefor, and an undertaking having been given and approved as required by me, in the sum of $3,000;

“It is therefore ordered by me, the Judge of the said District Court, that until the further order in the premises, you the said Antoni Speno (Here follow the names of the other defendants), and all your servants, counselors, attorneys, solicitors and agents, and all others acting in aid or assistance of you, and each of you, do absolutely desist and refrain from in any way or manner interfering with the plaintiffs’ water ditch, described as that certain water ditch, and all the water running through, or which may run through, the same, commencing on the south bank of the Clearwater river, at a point on said river, in Lot 1 (here follows a description of the property), known as and commonly called the Lewiston Water Ditch, through which the water runs and passes, used by the plaintiffs herein for irrigation and power purposes, and you, the said defendants, are hereby enjoined from doing anything which will interfere with the flow of water through the said ditch, over the lands of the plaintiffs in the future, and you, the said defendants, are enjoined from in any way or manner going upon any part or portion of the lands used and now owned by plaintiffs and hereinbefore described for said water ditch until the further order of the court. And you, said defendants, are hereby enjoined from in any way or manner cutting the said ditch or obstructing the same in any way.

“The injunction will not be in effect until the expiration of thirty days from the filing of this order, and will then be in effect if no appeal is then perfected to the supreme court.

“Done at chambers, this 12th day of August, A. D. 1907.

“EDGAR O. STEELE,

“District Judge.”

The respondents have made a motion to dismiss the appeal on the ground that said order is not an appealable order, or that it is not appealable until the thirty days have expired that must expire by the term of said order before the injunction becomes effective. If that order is an order granting an injunction, the right to appeal accrued immediately after the order was made under the provisions of section 4807. The order is a peculiar one, and in effect holds that the respondent will be entitled to an injunction in thirty days from the date of the order, provided an appeal is not taken from said order prior to that time. The clear inference is that if an appeal is taken within thirty days after the date of the order, the writ shall not issue or become effective. Within the thirty days after said order was made, an appeal was taken, hence the order does not grant an injunction. It never had any force or effect as a live order granting.an injunction, because the right to an injunction never accrued under it. The respondents had no right to an injunction under that order and no injunction ever became effective against the appellants. It was such an order as left both parties in the air as to their rights under it. A party making application for an injunction is either entitled to it or he is not entitled to it, and his right to it cannot be made to depend upon the fact whether an appeal shall be taken or not. Our statutes applicable to injunctions contemplate that the order made after the hearing shall either grant or deny the application. If application was’prematurely made, as was evidently done in the case at bar, at least so far as refusing to make the order effective for thirty days, the court should have denied the application as having been prematurely made. The statute contemplates the granting of the writ if the party is entitled to it. It does not contemplate granting it in futuro or granting it on condition that no appeal is taken from such order. The evident intention of the judge was to give the defendants, who are appellants here, the right to have the question of their right to an injunction first determined by this court before the writ should be issued against them. That kind of practice was not contemplated by our laws. Because of the appeal, the respondents were prevented from securing an injunction, but they have not appealed from the order of the court conditionally denying their application. The order of the court is in such shape that if this court had heard the appeal on its merits, and held that the respondents were entitled to an injunction, the lower court would have had to make another order before the clerk could have legally issued the writ in favor of the respondents. If this court should pass upon the merits of this appeal it would, at most, only be determining a moot question. An affirmance of the order made by the district judge would afford no one any relief, and it would still remain for the trial court or judge to make another order in the case, which in turn would be appealable. It is the province of this court to hear and determine real controversies between litigants, but not moot questions.

For the foregoing reasons the motion to dismiss the appeal must be granted. Under the facts of this case, we deem it only right that each party should pay half the costs of this appeal, and it is so ordered.

Ailshie, C. J., concurs.