Heinze v. Butte & B. Consol. Min. Co.

107 F. 165 | 9th Cir. | 1901

GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

A motion is made to dismiss the appeal upon the ground that no appeal lies from the order from which it is attempted to be taken. The fight to appeal to the circuit court of appeals from an interlocutory order or decree was created by section 7 of tbe act which established the court. It was there provided—

“That where, upon a hearing- in equity in a district court, or in an existing circuit court, an injunction shall be granted or continued by an interlocutory order or decree, * * * an appeal may be taken from such interlocutory order or decree granting or continuing such injunction to the circuit court of appeals.” 26 Stat. 828.

By the act of February 18, 1895, section 7 was amended to read as follows:

“That where, upon a hearing in equity in a district court or a circuit court, an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree or an application to dissolve an injunction shall be refused * * * an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve an injunction to the circuit court of appeals.” 2 Supp. Rev. St. p. 376.

By the act of June 6, 1900, it was provided that the seventh section of the act of 1891 be amended to read as follows:

“That where, upon a hearing in equity in a district court or in a circuit coui-t, or by a judge thereof in vacation, an injunction shall be granted or continued or a receiver appointed, hy an interlocutory order or decree, =s * * an appeal may he taken from such interlocutory order or decree granting or continuing such injunction or appointing such receiver to the circuit court of appeals.”

It will be observed that the act of June 6,1900, amends the seventh section of the judiciary act of 1891, without expressly referring to the amendment of February 18, 1895. We think there can be no doubt that the last act was valid, notwithstanding that it purports to amend a section of the original act which had already been amended by the act of 1895, and that its enactment necessarily operated to repeal the amendment of 1895. Wire Co. v. Boyce (C. C. A.) 104 Fed. 172, and cases there cited. The law, therefore, by which the present motion to dismiss must he ruled, is the act of June 6, 1900; and the question arises whether the appeal in the present instance is an appeal from an order appointing a receiver or granting or continuing an injunction. It is admitted that it is not an appeal from an order appointing a receiver. The order appointing a receiver was made some eight months before the entry of the order which is appealed from, it is contended, however, that the appeal Is from an order continuing an injunction, for the reason that the order appointing the receiver proceeded to direct the appellant to deliver to the receiver the possession of the property which is in controversy, and enjoined him from interfering with the receiver’s possession; and it is said that by virtue of such provision tbe order became also an injunction order, — an order from which an appeal might have been taken irrespective of the order appointing the receiver, — and that the action of the court in entering the order which is appealed from, although that order did not embody an injunction or continue an injunction, but dismissed the appellant’s application fco net aside the injunction, was nevertheless, in its nature, an order continuing: an injunction, and was therefore appealable. The appellant cites In re Tampa Suburban R. Co., 168 U. S. 583, 18 Sup. Ct. 177, 42 L. Ed. 589; Association v. Storrow, 34 C. C. A. 182, 92 Fed. 5. American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 146 U. S. 372, 13 Sup. Ct 758,37 L. Ed. 486,—in support of the ^proposition that, if-an order appointing a receiver contains an in-junction against interference with the receiver's possession, an appeal may he taken therefrom as from an order granting .an injunction; We think it unnecessary to consider that question Conceding for tire purposes pf this discussion that the order of March 15, 1900, may be regarded as an order granting an injunction, can it be said that the order of November 14, 1900, which is the ci der appealed - from,-was in any sense an order either granting or continuing an injunction We think not. The intention of the act of 1891 was to create the right of appeal from an injunction order an order i granting an injunction or subsequently directing that it be continued in force. It does not by its terms extend to an order sustaining or denying a motion to set aside an injunction already granted or dismissing an application to dissolve an injunction, and it has been , held that it was not intended by implication to extend to such an order. Dreutzer v. Land Co., 13 C. C. A. 73, 65 Fed. 642. The in tention of the original legislation in this respect is made manifest by the terms of the amendment of 1895, whereby express provision was made for appeal from orders granting continuing refusing dissolving, or refusing to dissolve an injunction. In subsequently returning, by the amendment of 1900, to the original provisions of the act, it must be held that congress intended to repeal the more liberal provisions of the amendment of 1895, and to readopt the stricter rule of 1891. It must be presumed that the amendment of 1900 was made in view of, and with special reference to, evils which had been introduced by the amendment of 1895, and for the purpose 1 of curtailing appeals from interlocutory injunction orders. Under ; the amendment of 1895 no limit was placed to the exercise of the right to move for the dissolution of injunctions, and the right existed to appeal from every ruling upon such a motion. If that amendment had never been enacted, and the right created by section 7 of the judiciary act of 1891 had never been thus enlarged, there might perhaps be plausible ground for now urging that the amendment of 1900 was intended to apply to a case such as that now under consideration but in view of the amendment of 1895 and its subsequent repeal, there is no room for a liberal construction of the existing statute. The appeal will be dismissed.