19 Pa. Super. 498 | Pa. Super. Ct. | 1902
Opinion by
The record shows that on September 10, 1900, the plaintiff’s bill and injunction affidavits were filed; that on the same day the president judge awarded a preliminary injunction returnable on September 15; that on the last mentioned date the defendants filed an answer; that testimony was taken; and that on December 8, the court entered the following decree : “ Having therefore fully examined the case as presented, and finding no sufficient reason, we refuse the motion to dissolve, and hereby direct the injunction heretofore granted in this case to continue until further ordered.” Without further action by the court, except the sealing of certain bills of exceptions tendered by the defendants, the latter took this appeal.
Manifestly this was not a decree entered upon final hearing, but, as in terms it purports to be, a decree entered after a hearing upon the defendants’ motion to dissolve the ex parte injunction ; in effect, an interlocutory decree, entered after the taking of testimony in the mode prescribed in the 81st equity rule, continuing an ex parte five days’ injunction until final hearing, which has not yet been had. If we were to view the decree otherwise, we should be compelled to hold that the appeal was prematurely taken, for the reasons given in Shamokin and Coal Township Light and Power Co. v. John, 18 Pa. Superior Ct. 498.
The prayers of the bill, so far as material here, were : first, “ that the defendants be restrained by preliminary injunction, till hearing and by perpetual injunction thereafter from continuing said building operation; ” second, “ that said defendants be ordered and directed to remove said addition to their house in so far as said addition encroaches beyond the true and proper line of Water street.” If is too plain for discussion
A more liberal view of the power of the court has been taken in later cases which is thus expressed in Fredericks v. Huber, 180 Pa. 572 : “It is true that in order to meet the practices so emphatically condemned by this court in Easton etc., Pass. Ry. Co. v. Easton, 138 Pa. 505, and Cooke v. Boynton, 135 Pa. 102, equity has been compelled to advance a step, and if necessary to make even preliminary injunctions mandatory, as in Whiteman v. Fayette Fuel Gas Co., 139 Pa. 492. But such cases are exceptional, and are founded on the fact that there has been what was graphically described in Cooke v. Boynton, supra, as a race ‘ against the law.’ Equity regards the substance rather than the form of things, and will not allow itself to be baffled by a wrongful change while its aid is being invoked. The modern cases therefore have established the rule that the status quo which will be preserved by preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending con
That part of the writ of injunction issued on September 10, 1900, commanding the defendants to remove the addition to their house is set aside and the record is remitted with a procedendo.