78 W. Va. 662 | W. Va. | 1916
Plaintiff has appealed from an order of the circuit court of Tyler county, made on the 26th of July, 1915, refusing to entertain his motion to modify a mandatory injunction previously awarded against him on the application of defendants, commanding him to remove a certain fence, erected across a certain right of way over his land, described in the bill and answer in the cause, and enjoining him from “in any way interfering with the use by defendants of said roadivay, ’ ’ until the. further order of the court. After the injunction had been issued and served .upon Hissam he fenced in a small field and erected draw-bars across the disputed right of way at two places. Thereupon a rule was issued against him, on petition of defendants, to appear before the court in term on the 15th of June, 1915, and show cause why he should not be adjudged to answer for contempt of the court’s order. In obedience to the rule he appeared on the day named and was permitted to file his answer. At a subsequent day of the term the con
The appealability of the order is attacked in brief of opposing counsel, on the ground that the court did not decide the motion and did not refuse to modify the injunction, but simply refused to hear appellant until he had purged himself of the contempt. Sec. 1, Ch. 135, Code, gives right of-, appeal ‘ ‘ in any case in chancery wherein there is a decree or order dissolving or refusing to dissolve an injunction.” Assuming, (irguemelo, that the motion to modify the injunction was, in effect, a motion to dissolve it pro tanto, the refusal of the court, to modify it would be appealable. But the court has not in-fact denied the relief sought by the motion; it has simply refused to consider and decide' the motion, for reasons which have no relation whatever to its merits. The merits of the motion have never been considered or decided by the lower court, and hence there is nothing this court can review'oh appeal. Appellant has mistaken his remedy. The order.' declining to hear appellant’s motion is n"ot appealable, and his appeal will be dismissed as improvidently awarded.
'Appeal dismissed.