105 Ark. 19 | Ark. | 1912
(after stating the facts). In the case of Sanders v. Plunkett, 40 Ark. 507, the court held that a circuit judge has the power to dissolve in vacation an injunction ordered by himself in vacation. At the time the decision was rendered jurisdiction of matters of equity was vested in the circuit courts of the State. (Constitution of 1874, art. 7, § 15). Subsequently the State was divided into chancery districts, and jurisdiction in matters of equity was transferred from the circuit courts to the chancery courts.
Upon the authority of Sanders v. Plunkett, supra, it follows that a chancellor has power to dissolve in vacation an injunction ordered by himself in vacation. Section 12 of Acts of 1903, c. 166, creating chancery courts and dividing the State into chancery districts, reads as follows: “In case of the absence of the chancellor from the county any circuit judge or the judge of the county court of the county may issue writs of injunction or restraining orders, after the action has been commenced, but not before.”
The original action against the defendant Simmons was filed in the Phillips Chancery Court, and was there pending when the order granting the injunction was made by the circuit judge. The circuit judge in granting the injunction was acting pursuant to the power given him by section 12, Acts of 1903, c. 166, creating chancery courts, and was exercising a power auxiliary to the jurisdiction of the chancery court in which the action was pending. The effect of the order was the same as if it had been made by the chancellor.
The injunction, therefore, was subject to be controlled, modified or dissolved by the chancellor in all respects as if issued by his order in the first instance.
Section 3993, Kirby’s Digest, provides that the party enjoined may at any time, upon reasonable notice to the plaintiff, move the court upon the plaintiff’s complaint and affidavits alone to dissolve or modify an injunction of the application for which no notice was given.
Section 3994, Kirby’s Digest, provides that, after answer filed by the party enjoined, he may give notice to the plaintiff of the motion, in not less than ten days thereafter, upon the whole case, to dissolve or modify the injunction, and that, upon such motion, either party may read depositions and other competent evidence in writing.
The record in the case shows that no answer was filed by the defendant at the time he made the motion to dissolve the injunction, nor did he give the plaintiffs the ten days’ notice required by section 3994, Kirby’s Digest. Additional affidavits were also read at the hearing by the defendant. It may be that the chancellor should have refused to have dissolved the injunction until the defendant had complied with section 3994, Kirby’s Digest, but his order dissolving the injunction was not an act in excess of jurisdiction; his power to decide erroneously is as clear and undoubted as to decide correctly. In such case there is no want, of jurisdiction, but only an erroneous decision.
It follows that the circuit judge had no power to treat the defendant as in contempt, and it is ordered that his judgment committing the defendant for contempt be reversed and quashed.
