87 Kan. 504 | Kan. | 1912
The opinion of the court was delivered by
April 22, 1912, the petitioner filed in this court his application for a writ of habeas corpus, alleging that he was unlawfully imprisoned and restrained of his liberty by Martin T. Wilson, sheriff of Sherman county, and that so far as the applicant knew such sheriff based his authority on a pretended bench war
Instead of a return by the respondent as the statute requires we find a so-called answer by counsel for the school district, denying the restraint and referring to the record in certain cases in the district court. A transcript of the record in case No. 2364 shows that on December 4, 191Í, the officers' of school district No. 9 filed an application for an injunction setting up that the petitioner had contracted to build a schoolhouse for the district for an agreed price, part of which had been paid, and had failed to complete the same according to the contract and refused to allow the district to take possession of the property, and had threatened them with violence if they should undertake to do so; that the district was unable to make settlement with him because he would not comply with the terms of the contract; and praying that he be enjoined from interfering with the district in entering upon the premises, taking possession of the schoolhouse and conducting á school therein, and for such other and further relief as the court might deem equitable and just. This was accompanied by an affidavit of the director of the district. The judge made an order that Sharp “be and he hereby is restrained and enjoined from in any way interfering with the said plaintiff .. . until the final determination of this ac
April 6 a hearing was begun and on April 8 it was concluded. The petitioner was found guilty of contempt and ordered to yield-possession of the schoolhouse and refrain from interfering with its use by the school district and to give bond in the penal sum of $200 to secure his obedience, in default of which he was ordered committed to jail, the time being extended on motion of the petitioner until April 17 for giving the bond, the order further providing that if such bond were not then given a bench warrant should issue for the petitioner’s arrest and that he be thereupon confined in jail until he should have complied with the order and have given the bond. April 18 a bench warrant was issued, and executed the same day by apprehending the petitioner and placing him in jail.
It is asserted by counsel for the petitioner that the service of December 15 was made outside the county of Sherman, but we have nothing by way of record or admission to support the claim and hence can not consider it as established, whether material or not.
From the array of files and records supplied it appears that the plaintiff school district filed in the court below no regular petition, but an application setting up
In The State, ex rel., v. Pierce, 51 Kan. 241, 32 Pac. 924, before the institution of the action a summons was duly issued upon which the words “injunction allowed” were indorsed by the clerk, and the mere fact that this indorsement was not signed by the clerk was held to be no ground for asserting the invalidity of the order of injunction itself; In The State v. Johnston, 78 Kan. 615, 97 Pac. 790, it was held that the terms “temporary injunction” and “restraining order,” while often used synonymously, are sometimes properly distinguished; that a restraining order is effective only until an application for an injunction shall be heard, and that a temporary injunction is a restraining order effective until the trial of the action in which it is issued; that an order made by a probate judge in the absence of the district judge from the county in an action pending or being begun in thé district court, operative until the district court or j udge shall act, is a restraining order and not a temporary injunction. It will be observed that here the order was made by the district judge restraining and enjoining the defendant “until the final determination of this action,” and we think upon principle as well as upon the authority last cited it should be deemed a temporary injunction rather than a mere restraining order. In The State v. Werner, 80 Kan. 222, 101 Pac. 1004, it was held that a restraining order granted in a nuisance case by the probate judge, the district judge being absent from the county, while properly to be regarded as a restraining order was, nevertheless, “a command to refrain from a particular act,” bringing it within the code definition of an injunction. (Old Civ. Code, § 237, Gen. Stat. 1901, § 4684, New Civ. Code, §249.) In the case-of In re Luttgerding, 83 Kan. 205, 110 Pac. 95, the district court had designated
“It was a temporary restraining order which was asked for, and the district court treated and designated the order granted as a temporary restraining order. The only basis for calling the restraining order a temporary injunction was that no time was fixed to hear the application for a temporary injunction, but this fact alone does not determine the character of the order. ... In the order itself the court in plain terms called it a temporary restraining order, and we think it should be so treated in this collateral attack.” (pp. 210, 211.)
“Preliminary or interlocutory injunctions are those granted prior to the final hearing and determination of the trial, and continue until answer or until the final hearing, or until the further order of the court. . . . Their object is to maintain the status quo, to maintain property in its existing condition, to prevent further or impending injury — not to determine the right itself.” (22 Cyc. 740.)
“A restraining order is an order granted to maintain the subject of controversy in statu quo until the hearing of an application for a temporary injunction. It may be issued before notice to defendant in order to prevent irreparable injury pending the hearing. Its purpose is merely to suspend proceedings until there may be an opportunity to inquire whether any injunction should be granted, and it is not intended as an injunction pendente lite; hence its duration should be limited to such a reasonable time as may be necessary to notify the adverse party, especially where defendant is likely to be damaged by delay.” (22 Cyc. 745.)
“The injunction provided by this code is a command to do or refrain from doing a particular act.” (Civ. Code, § 249.)*510 fendant or any party to the suit should be heard before granting the injunction, it may direct a reasonable notice, . . . and may in the meantime restrain such party.” (Civ. Code, § 252.)
The writ is therefore allowed.