Breese v. Bramwell

201 P. 729 | Or. | 1921

BURNETT, C. J.

1. An injunction may be allowed by the court or judge thereof at any time after the commencement of the suit and before decree: Or. L., § 417. Under Section 51, Or. L., made applicable to suits in equity by Section 395, Or. L., a suit is commenced by filing a complaint with the clerk, and at any time after suit is commenced the plaintiff may cause a summons to be served on the defendant. The objection that the injunction was granted before summons was served is clearly without foundation. Under the sections quoted, an injunction may be issued even before the service of summons.

2, 3. Moreover, the injunction, being merely temporary and interlocutory, is not final within the meaning of Section 548, Or. L., reading thus:

“A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, or an interlocutory decree in a suit for the partition of real property, defining the rights of the parties to the suit and directing sale or partition, or a final order affecting a substantial right, and made in a proceeding after judgment or decree, or an order setting aside a judgment and granting a new trial, for the purpose of being reviewed, shall be deemed a judgment or decree. ’ ’

Nothing is decided finally by the terms of the injunction orders to which allusion has been made. The final determination of the suit remains in the breast of the Circuit Court on proper proceedings. It' is urged in the brief appearing in the record attached to the motion to dissolve the injunction, that under Section 6221, Or. L.:

“No attachment, injunction or execution shall be issued against such bank or its property before final judgment in any suit, action or proceeding in any court of competent jurisdiction.”

This refers to the insolvent bank which has been forced into liquidation. But in this case the insolvent bank is not a party. The injunction has been issued against the superintendent of banks and the Bank of Prineville, in which he has deposited funds belonging to the insolvent bank. The preliminary injunctions mentioned, therefore, do not come within the provision of this excerpt upon which the defendants rely. Even if it did apply, we have a mere interlocutory order of a court of competent jurisdiction, which may or may not be erroneous, as the event shall prove. But until a final determination has been reached in that court, the Supreme Court has no jurisdiction to review the orders of the Circuit Court. It may be that in the ultimate conclusion of the whole matter the Circuit Court will decide the matters at issue correctly. Until it has an opportunity to do so and makes a final decision, this court cannot interfere. As to the finality requisite to an appealable order, see Oregon Ry. & Nav. Co. v. Taffe, 67 Or. 102 (134 Pac. 1024, 135 Pac. 332, 515).

The appeal must be dismissed. Dismissed.