127 Ky. 155 | Ky. Ct. App. | 1907
Opinion of the Court by
In chambers.
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 defendant’s cutting and removing timber from a certain boundary of land, claimed in the petition to belong to the plaintiff. The temporary restraining order was granted by the clerk without notice to the defendants because of the immediate urgency set forth in the plaintiffs’ 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 Fayette 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 wás held in Matthews v. Rogers, 107 Ky. 236, 21 Ky. Law Rep. 905, 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 of 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 of the court’s interpretation of the statutes. A frequent recurrence of motions to reinstate restraining orders indicates that many of the bar have failed to note the distinction drawn by the
When an injunction is dissolved or modifiéd by the court before final judgment, or by a circuit judge,- the plaintiff may apply to a Judge of the Court of Appeals to reinstate it (section 297, Civ. Code Prac.); or, where an injunction has been granted or continued by interlocutory order, the party enjoined may apply to a Judge of the Court of Appeals for the dissolution or modification of the injunction (subsection 2, sec
The point is made in this case that an injunction cannot be granted in an action at law. I think this an erroneous assumption. The order of 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 ancillary 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. But the Code regulates the practice in such cases. It also goes further, and allows the order of injunction to issue in any case where the facts justify the application of the ancillary remedy of injunction within the terms of the law as written in the Code.