Meadow Valley Mining Co. v. Dodds

6 Nev. 261 | Nev. | 1871

By the Court,

Lewis, C. J.: •

This appeal is from the following order made by the Court below before trial, upon a rule to show cause why an injunction should not issue against the appellants : “ It is ordered and adjudged that the defendants give to the plaintiff a good and sufiScient bond in the sum of five thousand dollars gold coin, to be approved by the Court, conditioned that said defendants shall, in consideration of retaining possession and control of the premises and water in the complaint described, during the pendency of this action, pay the plaintiff such sum of money for their damages and costs as it may sustain by reason of the acts of defendants, should the plaintiff finally recover in this action. It is • further ordered that in case said bond shall not be filed with the clerk of this Court on the fifth day of November, A. D. 1870, at one o’clock p. M., that then a receiver will be appointed by the Court to take charge of the property in dispute and sell the water at the same. It is also ordered that the defendants may, during the time before this cause shall come on for trial, make such improvements upon said property as they desire to make, but they shall not remove any improvements therefrom or commit any waste thereon.”

The first question naturally suggesting itself upon this appeal is whether this rather unusual order is one of those from which an appeal is allowed. Section three hundred and thirty of the Code of Procedure designates all the decisions or orders from which an appeal may be taken: First, it is allowed from “ a final judgment in an action or special proceeding commenced in the Court in which the judgment is rendered; second, from a judgment rendered on an appeal from an inferior Court; third, from an order granting or refusing a new trial, from an order granting or dissolving an injunction, and from any special order made after final judgment;, fourth, from an interlocutory judgment or order in cases of partition which determines the rights of the several parties, and directs partition, sale, or division to be made.

It is apparent at a glance that this order is not embraced in this section, unless the latter portion of it, whereby the defendants are prohibited from removing improvements and committing waste can be called an injunction. Possibly it may be so ; at least we will so consider it for the purposes of this appeal. It must be borne in mind, however, that 'nothing in the order quoted can be reviewed on this appeal, except that portion which may be designated an injunction. As the statute does not allow an appeal from an order requiring a party litigant to give a bond as is done here, nor an order appointing a receiver, it is evident that it was not intended to permit a review of the action of the lower Court in matters of that kind, except upon an appeal from the final judgment. If an order granting an injunction also embrace, as in this case, a further order or requirement entirely independent of the injunction, that a party execute a bond for the protection or security of the other, we do not see that an appeal from that portion of the order which is ap-pealable -will warrant a review of another portion which is not, and which, although embraced in the same order, is really independent and distinct in itself. That they were made at the same time or written on the same paper does not make them one and the same order. That may be, and still the orders be as distinct and independent as if made at different times and reflecting different subjects.

It must be determined from the body and subject matter of the mandate of the Court whether it embraced more than one order. The order requiring the defendant to give a bond in the sum of five thousand dollars, as security to the plaintiff in case it recover judgment, is in no way dependent upon or connected with the injunction placed upon the defendants in the conclusion of the order, and it is only by treating that as an injunction order that this case can be held to be before this Court at all.

The appellant brings up a statement of evidence and the proceedings had at the hearing upon the order to show cause, claiming that it exhibits many errors committed by the Court below, and also that it shows that plaintiff failed to make out a case on the merits entitling him to relief. None of these points, however, can be reviewed here, for the reason that the statement, if it may be so-called, contains no assignment or specification of the errors to be ruled on. (See Corbett v. Job, 5 Nev. 201; Practice Act, Sec. 332.)

It only remains to be determined, then, whether the complaint warrants or will support an order enjoining the defendants from removing improvements or committing waste on the premises in dispute pending the trial. That pleading is perhaps not entirely formal or complete, but it seems to contain sufficient to sustain the order. We may conclude from it that there are improvements of some kind on the demanded premises; that the defendants are in possession: that they threaten to destroy, and will if not enjoined destroy such improvements, and that they are insolvent and unable to respond in damages. Taken entire, we are inclined to think the complaint sufficient, if not on demurrer, at least after joinder of issue, the introduction of evidence and granting of the order, for the same rule whereby the sufficiency of a pleading is tested after judgment equally applies after an order of this kind made upon a full hearing. That rule, it will be remembered, is that after verdict or decision in an action, when issue is joined, the Courts will support the pleading by every legal intendment, if there be nothing material in the record to prevent it.

It follows that the injunction must be affirmed. It is so ordered.

Garbee,, J., did not participate in the foregoing decision.