Williams v. Jones Amerman

August 27, 1912. The opinion of the Court was delivered by This case comes up to this Court on appeal from an interlocutory or preliminary injunction issued by Judge Gage on June 20, 1910, on the following exceptions, viz.:

1. "That his Honor erred in holding that leave to sue was granted by any Court of competent jurisdiction, so far as appears by the complaint, and in holding, by implication, that mere permission granted to plaintiff ``to commence and maintain this suit, as she may be advised,' without notice to defendant, in anywise precluded consideration of the adequacy of these pleadings to support a cause of action or injunction, as it does not follow that the Court granting leave ``to commence this suit,' predetermined that any complaint the plaintiff might be advised to frame would suffice to constitute a cause of action, be immune from any plea apparent on its face, or that it would support an injunction temporary or otherwise.

2. "That his Honor erred in holding that in considering the rule and return herein, he could not consider whether or not the plea of res judicata was established upon the face of the complaint, and exhibits submitted therewith; whereas, he should have held the same showed an adjudication upon the very acts complained of in another suit, to which the parties herein were privy, and that a motion for permanent injunction, based upon practically identical cause of action and allegations, was pending in such other suit, and should have consequently refused the application for injunction in this case.

3. "That his Honor erred in holding the return irrelevant in showing the pendency of a motion in another jurisdiction for the same injunction sought in the present motion, and in not discharging the rule and refusing the motion after it appeared that the order of Judge Prince referred to had been granted."

In order that there may be a clear understanding of the matters herein presented, the "case" for appeal herein, except Exhibit "F," which is the opinion of this Court, reported in 85 S.C. 1, should be incorporated in the report of this case.

We will first consider the proposition urged by the defendants in the fourth clause of their return to the rule to show cause issued by Judge Gage on April 30, 1910, in this matter, wherein the defendants took the position that Judge Gage had no jurisdiction at chambers, without consent, to grant a permanent injunction upon the merits before trial of the issues in this action. This proposition is not included in the exceptions of the defendants, but it is proper for this Court to consider it. It is true that this order required the defendants to show cause why they should not be "perpetually enjoined and restrained," etc. But this appeal cannot be sustained on the ground that Judge Gage undertook to grant at chambers a permanent injunction decisive of the case, for the order appealed from herein shows on its face that it is not permanent, but only a temporary injunction pending the hearing of the cause on its merits, and that the motion therefor was so treated, — Judge Gage using the following language in said order, viz.: "Just now the motion is for a temporary order of injunction of the nuisance to stand until the issues shall have been tried." And quoting from another part of said order wherein the Judge required the plaintiff to give bond "conditioned to save the defendants harmless in the event of a failure of the plaintiff's action." In addition to this, we fail to find any objection made by the defendants on this ground to the issuance by Judge Gage of a temporary injunction. The order appealed from is only a temporary injunction until the case is heard on its merits, and this is all it purports to be.

All of the other questions raised by the defendants-appellants in their said return, and exceptions, are collateral issues or matters of defense, involving the merits of the case, which Judge Gage could not consider except in so far as he may have done so in reaching the conclusion as to whether the plaintiff was entitled to the temporary injunction appealed from herein.

"Where it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff, * * * a temporary injunction may be granted to restrain such act." Quoted from section 240, volume II, of the Code of Laws of South Carolina, 1902.

The sole object of this section of the Code is to preserve the subject of controversy in its then existing condition, and without determining any question of right, merely to prevent a further perpetration of wrong or the doing of any act whereby the right in controversy may be materially injured or endangered, until a full and deliberate investigation of the case is afforded to the party.

In passing upon an application for an interlocutory or preliminary injunction the Court must satisfy itself, not that the plaintiff has certainly the right, but that he has a fair question to raise as to the existence of such a right. It is true that the Court will not interfere if it thinks there is no real question between the parties; but seeing that there is a substantial question to be decided, it will preserve the property until such question can be disposed of.

The plaintiff may be entitled to a preliminary injunction in cases where his right to the relief sought may fail on a hearing on the merits. Am. Enc. L., vol. XVI, p. 345.

Under the decisions of our Court it is not proper for a Circuit Judge to consider the merits of a case of this kind at chambers on a motion for a temporary injunction, except in so far as they may enable him to come to a proper conclusion as to whether a prima facie showing has been made. When such showing is made a temporary injunction will be granted without regard to how the case may terminate on the hearing on the merits.

Our Courts hold that where the action is for the sole purpose of an injunction, and a temporary injunction is essential to the assertion and preservation of a legal right, if established as alleged in the complaint, it would be error of law to refuse a temporary injunction. Alderman SonsCo. v. Wilson, 69 S.C. 156, 48 S.E. 85, and cases therein cited.

Ordinarily, however, an interlocutory injunction is not a matter of right, but of grace, resting in the sound discretion of the Judge. Pelzer, Rodgers Co. v. Hughes, 27 S.C. 415,3 S.E. 781.

And we do not see that Judge Gage committed any error of law, or abused his discretion, in granting the temporary injunction herein appealed from. For these reasons the exceptions of the defendants are overruled, and the order of Judge Gage herein appealed from sustained.

MR. CHIEF JUSTICE GARY concurs.