Flagg v. Sloan

| Ind. | Jun 15, 1861

Hanna, J.

In vacation of the Circuit Court, the judge thereof granted a temporary injunction against appellants, without notice to, or appearance by, the party enjoined. At the next term of the Court the parties appeared, and'appellants filed a demurrer to the petition for an injunction. Before the questions of law raised by the demurrer were determined, this appeal was prayed, and granted, from the order made in vacation.

It is objected here, that the parties affected by the order should have moved before the judge, or in the Court below, to set aside said order and dissolve said injunction, before they can present the questions here sought to be presented; as it is insisted that this case falls within the spirit of various rulings in this Court, in reference to appeals from judgments by default, &c. We do not think so, for the reason, among others, that the statute expressly authorizes an appeal from an interlocutory order granting an injunction in vacation. 2 B. S.j p. 162. It was erroneous to grant it without notice. 2 B. S., p. 60 ; 6 Ind. 303.

J. M. Flagg, for the appellants. A. Ellison, for the appellee.

As this was, in form, a temporary injunction, and not a restraining order merely, the question does not arise as to whether there is any appeal from an order falling within the latter class.

Per Curiam.

j udgment is reversed, with costs. Cause remanded, &c.