139 Ky. 707 | Ky. Ct. App. | 1907
Motion heard in chambers by
Motion overruled.
. The plaintiff in an action at law in the nature of an action of trespass obtained a restraining order from the clerk of the Lee circuit court against the defendants cutting and removing timber from a certain boundary of land claimed in the petition to belong- to the plaintiffs. The'temporary restraining order was granted by the clerk without notice to the defendants because of the immediate urgency set forth in the plaintiff’s complaint. The order was granted under section 276 of the Civil Code of Practice. The defendants gave notice of an application to his honor Watts Parker, the judge of the Payette circuit court, to dissolve the restraining order. Upon hearing the judge did dissolve it. The application is to a judge of the Court of Appeals to reinstate it.
The question for decision is, has a judge of the Court of Appeals jurisdiction in the matter ? It was held in Mathews v. Rogers, 107 Ky., 236, 53 S. W., 413, and in Jones v. Walter, 70 S. W., 191, 24 Ky. Law Rep., 878, that he has not. These opinions were intended for the guidance of all the judicial officers in this Commonwealth, as well as of lawyers and litigants in the practice of injunction proceedings. I do not feel at liberty to depart from the rule there indicated, even if I did not concur in the correctness
. Y7hen an injunction is dissolved or modified by the court before final judgment, or by a circuit judge, the plaintiffs may apply to a judge of the Court of Appeals to reinstate it (section 297, Civ. Code Prac.);
The point is made in this ease that an injunction cannot be granted in an action at law. I think this an erroneous assumption. The order of an injunction and the kindred temporary restraining order, as practiced in this State, are statutory remedies, and, except where granted as a final judgment in an action, are ancilliary to the principal action. The Code provisions on the subject do not abolish the common-law jurisdiction attaching to courts of equity to grant injunctions in such matters as those courts have granted from ancient times. The Code provisions merely regulate the practice in such cases. They
The motion to reinstate the restraining order in this case, for the reasons above given, is overruled.