24 Mont. 506 | Mont. | 1900
delivered tbe opinion of the Court.
This is an appeal by the defendants from an order refusing to modify an interlocutory injunction. The plaintiff moves a dismissal of the appeal upon the ground that it is an attempted appeal from an order refusing to modify an appealable order.
The facts pertinent to the pending motion may be thus
The plaintiff contends that the order of February 3d is not appealable, because it is an order refusing to modify a former order which was itself appealable. By virtue of Section 1722 of the Code of Civil Procedure, as amended by House Bill No. 124 of the session of 1899 (Laws of 1899, p. 146), an appeal may be taken to the Supreme Court from an order granting an injunction. The order of January 20th was, therefore, appealable. This section provides also that an appeal may be taken to this Court from an order refusing to dissolve an injunction. Refusal to modify is refusalyw tanto to dissolve. The latter provision must be examined in connection with, and interpreted in subordination to, the rule that an appeal will not lie from an order denying a motion which the law does not authorize to be made, though the order would otherwise be appealable. Was the motion to modify the injunction one which the law permitted the defendants or Gremmell to make? Sections 870 to 881, inclusive, of the Code of Civil Procedure, are devoted to the subject of injunction. In none of these sections is it provided that a temporary injunction order granted with notice may be dissolved or modified by the district court or its judge. Sections 878 and 879 provide that, if an injunction order be granted without notice, the deféndant may move a dissolution or modification thereof, and that the court may dissolve or modify such an injunction order, — the manifest implication of these sections being that, unless authority therefor exist elsewhere in the law, an application for the dissolution or modification of an injunction granted upon notice will not lie, and that an injunction order so granted must stand, so far as the power of the district court is concerned, until the cause in which it was granted is tried. As we have said, these sections are silent touching the dissolution or modifications of injunctions granted with notice, and so the question whether a motion may be made to dissolve or
The party against whom an appealable judgment or order has been made, or who is aggrieved thereby, may not appeal from an order refusing to vacate, dissolve or modify it. Such is the general rule, the basis of which is the principle that there must be an end to litigation, and hence some point at which the right or privilege of vacating or changing a decision or of having it reviewed ceases to exist. (Hayne, New Trial & App. Sec. 199, and authorities cited.) Having had his day in court and an opportunity to be heard, the losing-party must directly attack the decision by appeal, if it be appealable, and cannot assail it indirectly by means of a motion. No man ought to be twice vexed by one and the same cause. The reason underlying the general rule seems to be recognized, in part at least, in Section 1742 of the Code of Civil Procedure, which, in effect, prohibits the supreme court from reviewing on appeal from a judgment any decision or order from which an appeal might have been taken; and, while this section makes reference only to appeals from judgments, the principle applies as well to appeals from orders. To the general rule there are exceptions, some of statutory and others of common-law origin. Any special order made after fiual judgment in a civil action is, by Subdivision 2 of Section 1722, supra, declared to be appealable, and therefore, if such an order be made under the authority of Section 774 of the Code of Civil Procedure, refusing to relieve a party from a judgment, order or other proceeding taken or alleged to have been taken against him through his mistake, inadvertence, surprise or excusable neglect, an appeal may be taken therefrom, although the decision which the court refused to vacate was itself appealable. The right to appeal from an order refusing a new trial is also an exception to the rule, for the statutes permit such an appeal notwithstanding the party possesses the privilege of appeal from the judgment. In each of these cases the statute authorizes the appropriate motion to be made though
The defendants argue that the order of January 20th granting the injunction Avas irregular. But Ave hold otherwise. The order Avas made upon due notice, and after a full hearing; though it may have been erroneous, it Avas regularly heard and granted. The defendants insist also that the facts presented in support of the motion to modify differed from those shoAvn on the hearing Avhich resulted in the order sought to be modified. We do not agree Ayith them. The facts presented upon the motion to modify Avere the same as, and none other than, those Avhich existed (and Avere knoAvn to the defendants) at the time the hearing of January 13th Avas had, and when
Examination of the opinion in Bluebird Min. Co. v. Murray, 9 Mont. 468, 23 Pac. 1022, discloses that it is not in point upon the question presented in the case at bar. In the first place, the question here involved was not there raised or considered; secondly, in the Bluebird Case an injunction pending the litigation was granted in favor of the plaintiff and against the defendants. The defendants applied for an order of inspection, survey, and examination under the statutes. The application was granted, and the plaintiff appealed from the order allowing development work to be performed for the purpose of ascertaining the apex of the vein in controversy. It is to be noted that the first order was in favor of the plaintiff. It was not aggrieved, and there was nothing from which it could appeal, for it had obtained all that it asked for. The
We deem it proper to suggest that in cases where there is a substantial conflict in the evidence with respect to the existence of or the title to veins, and in which orders of injunction are granted, districts courts would seldom commit an abuse of discretion by preserving, in such orders, to the parties enjoined, the privilege of completing the locations of mining claims, and the doing of the annual representation work thereon (as the case may be), upon such terms as the circumstances may require for the protection of all the parties.
The remedy of the defendants is or was by appeal from the order granting the injunction, and not from the subsequent order of February 3d refusing to modify it. The latter order is not one from which an appeal lies. The motion to dismiss is therefore granted.
Dismissed.