2 Mont. 510 | Mont. | 1876
Tbe plaintiffs made an application to tbe judge of tbe third judicial district, at chambers, for an injunction pending suit to restrain the defendants from diverting water from their ditch. Tbe judge, upon tbe complaint of plaintiffs, granted
That from the evidence on the part of the plaintiffs, said plaintiffs were, on the 19th day of April, 1876, and prior thereto, the owners of that certain water ditch described in said plaintiffs’ complaint; that defendants diverted the water from said ditch; that, in his opinion, the material facts charged in plaintiffs’ complaint are true and have been sufficiently proven before him.
The defendants, upon the filing of their answer, moved the dissolution of the restraining order, granted pending the hearing under the order to show cause. The hearing of this motion was had before the said judge and granted. This the plaintiffs assign as error. The object of this action was the procuring of a permanent injunction. It would seem that the defendants ignored the order to show cause, and made their motion as though an injunction pending suit had been granted upon the complaint alone. This certainly was not proper practice. 1 'Whittaker’s Pr. 477. If the defendants considered their answer a sufficient showing, then their course should have been to have objected to the findings of fact by the referee and brought the case to a hearing on their exceptions, or upon the report of the referee to resist the application of the plaintiffs for an injunction pending suit. Where an order to show cause has been made and testimony material to the issues produced, the denying of the equities of a complaint by an answer is not always sufficient. And where there is such evidence, as it appears was produced before the referee in this case, this denial is not at all sufficient.
The judge, confronted with the report of the referee, was bound to base his order upon it, as long as it remained in force.. With such a report there was no judicial discretion left to him but to grant the motion for the temporary injunction. To hold otherwise would be resting the right to an injunction, pending suit, upon the caprice, and not the legal discretion of the judge. It
Tbe order made in this case at tbe instance of tbe defendants is set aside and revoked, and tbe cause remanded for further pro-
Exc&ptions sustained.