40 Ind. 347 | Ind. | 1872
This was a complaint by the appellants against the appellee, the object of which was to enjoin the defendant therein from constructing a railroad switch or side track on or along a street in the city of Kokomo, in front of certain real estate of the appellants. A temporary injunction was granted by the judge of the court, which was afterward in term dissolved, and from the judgment dissolving the injunction there was an appeal to this court, and the judgment was here affirmed. 32 Ind. 259.
After the decision of the case in this court, a supplemental complaint was filed by the plaintiffs in the court below, in which they allege, among other things, that after the
Thereupon the defendant moved the court, the motion being in writing, to strike the cause from the records of the court, for the reason that the same had been theretofore finally disposed of in that court, and upon appeal to this court.
The court sustained this motion, dismissed the action, and rendered judgment against the plaintiffs for costs, to which the plaintiffs excepted by bill of exceptions.
This action of the court is assigned for error. We think it was erroneous. The order of the court from which the former appeal was taken, dissolving the temporary injunction which had been granted, did not terminate the action. On the final hearing, the plaintiffs might, for aught that we know, have been able to show themselves entitled to a perpetual injunction. A demurrer to their complaint had been overruled by the court, showing that if it was true in fact, the court thought that they were entitled to an injunction. They should have had an opportunity to have shown it to be true on a final trial or hearing of the cause. Their action could not rightfully be dismissed on motion for the reason stated. An appeal may be taken to this court from an order dissolving an injunction, but whatever may be the judgment of this court on such appeal, the action itself is
No brief for appellee.
The judgment is reversed, with costs, and the cause remanded, with instructions to overrule the motion to dismiss the action, and for further proceedings.