Beers v. City of Watertown

176 N.W. 149 | S.D. | 1920

WHITING, J.

[1]. Respondent moves the dismissal of tlie appeal herein. The appeal is from an order of the circuit Court. ‘ The sole, question for our determination is whether the odder appealed, .from is .an appealable., order unclersection 3168, Rev. Code, 1919. . If-, tliie order appealed from, was an order vacating an injunction it was appealable. Was the. order vacated a temporary injunction, or a temporary restraining order? Between these two classes of orders there is a clear distinction, which appellant has failed to recognize. As was well said by the court in State v. Johnston, 78 Kan. 615, 97 Pac. 790:

“ 'Temporary injunction’ and ‘restraining order’ are often used synonymously. Our statute and the better usage limits the meaning of ’restraining order’ to such order as is operative only until a hearing can be- had upon an application for an injunction, and of ‘temporary injunction’ to an order operative usually until the final hearing of the case in which it is issued. Code, § 241 (Gen. St. 1901, § 4688;) 8 Words and Phrases, 6902; 7 Words and Phrases, 6183, 6184; 11 Am. & Eng. Encyc. of Law, 345-349. The restraint which the order purports to impose, and not the name given to it, determines its true name and character. The order * * * enjoined the defendants until the further order of the district court or the judge thereof in the premises. It required no revocation, but expired' upon the making of an order by .the district court or judge. It was simply a restraining order.”

This distinction is clearly pointed out upon the rehearing in Sand v. Peterson, 30 N. D. 171, 152 N. W. 272, also in San Diego v. Steamship. Co., 101 Cal. 217, 35 Pac. 651; State v. Wakeley, 28 Neb. 431, 44 N. W. 488, and Wetzstein v. B. & M. Co., 25 Mont. 135, 63 Pac. 1043.

[2] Under section 2425, Rev. Code 1919, an injunction máy bé granted at the commencement of the action -or any time--thereafter. • Appellant relies upon such section in support of -his contention that the' order before us is a temporary injunction. But an order' granting -'an injunction would' not provide, as the'one 'before us did, for a hearing at which respondent should ‘-‘show cause * * * why the court should not issue a temporary -restraining order, restraining and enjoining defendants-'and each of them- -* * * pending the trial of this action or until"- the further order of this court,-”* and further 'providing “that, until said hearing,' defendants and eách of ‘them be,-'and they are hereby,' restrained and enjoined,” etc. 'The use of the term “temporary -restraining' order,” as it .was -used in thé- said' order,- clearly' discloses that the party drawing'-same failed to distinguish' “a temporary restraining order” from a “temporary injunction” — that which he clearly intended to seek upon the return date of the order to show cause.

The order to• show cause did not provide for the giving of any bond before the restraining order should go into effect. Section 2427, Rev. Code 1919, provides that, upon granting an injunction, “the court or judge shall' require a written undertaking',” etc. It is only under section 2428, Rev. Code 1919, that a court is authorized to grant an order such as was granted. This section reads:

"If the court or judge deem it proper that the defendant, or any of the several defendants', should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defendant majq in the meantime, be restrained.”

If anything further is needed to demonstrate to a certainty that the order appealed from was understood to be a mere show cause order granted under section 2428, the restraining clause of which was a mere temporary restraining order, we have it in the various files presented by appellant on this motion. The circuit court, in the very order appealed from, twice refers to the order it is vacating as “the temporary restraining order.” Counsel repeatedly refers to said order as a “temporary restraining order” andl “show cause order.” In his affidavit asking an order fixing bond on appeal he expresses a desire to “keep said temporary restraining order in force.” It is true counsel, after the order was vacated, sometimes speaks of it as a “temporary restraining order and temporary injunction”; but by so doinghe merely discloses more clearly that he failed to distinguish between the two kinds of orders. His appeal to this court, as shown by the notice of appeal, is from “that certain order * * * ordering that the temporary restraining order * * * 'be and the same is hereby vacated and set aside.' ” In said notice, appellant further says that said appeal is also from “said order dissolving said temporary restraining order and injunction,” again evidencing the fact that in his mind a "temporary restraining order” and a “temporary injunction” were one and the same.

[4] It is perfectly clear that the order appealed from was not an order “vacating an injunction.” Appellant has not claimed that it could or should be construed as an order “denying an injunction,” though perhaps it would be subject to such construction. Porter v. Jennings, 89 Cal. 440, 26 Pac. 965. That appellant has not treated the order appealed from as one “denying an injunction” is shown by the notice of appeal, by the proceedings taken under section 3160, Rev. Code 1919, to procure* an order fixing the undertaking on appeal, by the order fixing such undertaking (which directed that, upon the giving of the undertaking, “the order setting aside and vacating the restraining order and temporary injunctional order is stayed upon said appeal,” instead of directing that “the injunction asked * * * be allowed” as would be the order upon an appeal from an order denying an injunction), and by the terms of the undertaking itself.

[5] Is an order vacating a temporary restraining order appealable? It would seem that a complete answer to such question would be found in the query: “Could the appellant have appealed if the trial court had made an order refusing to issue a show cause ordter?” As stated in 22 Cyc. 745, the purpose of a temporary restraining order “is merely to suspend-proceedings until there may 'be an opportunity to inquire whether any injunction should be granted.” In other words, its office is merely to preserve the status quo until there can be a hearing upon the question of whether or not to grant an injunction— such order does not rise to the dignity of an injunction. In fact the trial court, under section 2428, Rev. Code 19.19, would have had no power, upon the hearing and determination - of the order to show cause, to make any order except one either granting or'refusing the “temporary” or pendente lite injunction which appellant was seeking; if it had granted an order restraining-defendant during the pendency of the action, no matter if it had been termed a “temporary - restraining order,” it would in fact have been a “temporary injunction” to support which would have required the giving of an undertaking. The temporary restraining order would, without any express order to that effect, terminate upon the granting or refusal of the temporary injunction. Hicks v. Michael, 15 Cal. 107; San Diego v. Steamship Co., supra; State v. Johnson, supra. The order purporting to vacate a temporary restraining order is not an appealable order under section 3168, Rev. Code 1919. Wetzstein v. B. & M. Co., supra.

The attempted appeal is dismissed.