107 F. 161 | 5th Cir. | 1901
(after stating the facts as above). Although we have heard much argument, orally and by brief, on many matters supposed to be involved, we do not find it necessary to- determine whether the injunction issued on October 10, 1900, without notice or hearing and without bond, should be construed as a restraining order issued under the authority of section 718, Rev. Bt. U. S., or was a special injunction issued in violation of the fifty-fifth equity rule, or whether the appeal in this case was intended to be from the order of the circuit judge refusing to discharge and dissolve the said injunction, or from the order of the district judge refusing to vacate and discharge the injunction, or whether an order refusing to vacate and discharge an injunction is equivalent to an order refusing to discharge and dissolve an injunction; for in any event the appeal in this case must be dismissed. As a general rule, appeals from interlocutory orders made during tbe pendency of an equity cause are not allowed. Prior to March 3, 1891, they were not allowed at all. In the seventh section of the judiciary act establishing the circuit court of appeals, approved March 3, 1891, it was enacted:
“Sec. 7. That where, upon a hearing in equity in a district court or in an existing circuit court, an injunction shall ho granted or continued by an interlocutory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction to the circuit court of appeals: provided, that the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court during the pendency of such appeal.”
Under this section none of the orders issued in the cause concerning the injunction, save the first, were appealable. This section remained in force until February 18, 1895, when, by act of congress approved on that day, it was amended so as to read as follows:
“That where, upon a hearing in equity in a district court or a circuit court, an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree or an application to dissolve an injunction*164 shall be'refused 'In a'ease'in wbieb 'an appeal from a final decree may be' taken under thé provisions of this ;act to :the circuit court of appeals, an appeal may be taken from such interlocutory .order or decree granting, con-tinuing, refusing, dissolving, or refusirig to dissolve an injunction to the cii> euit court.of appeals: provided, that the appeal must be. taken within thirty days' from the entry of such order or decree;, and it shall take precedence in the appellate court; and the proceedings in other réspects in the court' below shall not be stayed unless otherwise ordered by that court during the pendency of such appeal: and provided further, that the court below may in its discretion require as a condition of the appeal, an additional injunction bond.”
Under this amendatory act it is probable that all of the orders relating to the injunction — granting it, refusing to discharge and dissolve it, and refusing to discharge and vacate it — were appealable.
On June 6,1900, another act was passed, by which the original section 7 of the -judiciary act of 1891 was again amended and re-enacted so as to read as follows:
“Sec. 7. That where, upon a hearing in equity in a district court or in a circuit court,'or by á judge thereof in vacation, an injunction shall be granted or continued or a receiver appointed, by an interlocutory order or decree, in a cause in which an appeal from a-final decree may be taken under the provisions of this act to the circuit court of appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction or appointing such receiver to the circuit court of appeals: provided, that the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed, unless otherwise ordered by that court or by the appellate court or a judge thereof, during thé pendency of such appeal: provided further, that the court below may in its discretion require as a condition of the appeal an additional bond.”
By tbis amendátory act no repeal in terms was declared either of the original section 7 of the act of 1891 or of the amendatory act of 1895, but we take it to be perfectly clear that as section 7 of the act of 1891 can only read one way, and that way is as last declared by the legislative authority, the original section 7 and the amendatory act of 1895 were necessarily repealed by Act June 6, 1900. See Wire Co. v. Boyce (C. C. A.) 104 Fed. 172. Under this last amendatory act an appeal is authorized from an interlocutory order or decree granting or continuing an injunction upon a hearing in equity in a causé in which an appeal from a final decree may be taken to the circuit court of appeals, but limiting the right of appeal to 80 days from the entry of the order or decree granting or continuing the injunction. The order or decree "continuing an injunction, within the meaning of-the statute, is an order or decree which has vitality, affecting in some way .the rights of the parties, and without which the injunction would either cease to have force or be enlarged or limited in scope. Frequently orders of injunction, under the law and the equity rules, or by terms inserted by the court or judge, are made to expire at specific dates or on -the happening of specific events, and in such cases orders continuing the injunction in force are necessary. See section 719, Rev. St.-, and fifty-fifth equity rule. An order or decree refusing to dissolve or to discharge or to vacate an injunction is not.an order continuing ran injunction, within the meaning of the'amendatory act.-. It is to. be noticed that the act of 1900 and the original- section -7 -are
“Tlie order denying a motion to dissolve did not continue the injunction. Without such ruling hy the court after the filing of the bond, the injunction would have remained in force. The necessity of the ruling of the court arose, not by reason of the order for injunction, but hy reason of the motion to dissolve.” ■
In Railroad Co. v. Walker, 15 C. C. A. 188, 68 Fed. 23, it was held that under the act of 1891 an appeal would not lie from an order of court dissolving an injunction. In Wire Co. v. Boyce, supra, it was; held that under the last amendatory act an appeal would not lie from an interlocutory order denying an injunction. To hold that an appeal will lie from an order refusing to dissolve an injunction would' be to render meaningless the amendatory act of 1895, in which it was. deemed necessary to expressly give the right to appeal from an inter-; locutory order refusing an injunction or dissolving an injunction,, or refusing an application to dissolve an injunction.' It would also render of no effect the provision in the original and both amendatoryacts i hat appeals must be taken within 30 days from the entry of; such order or decree, because, as said in Boston & A. R. Co. v. Pullman’s Palace-Car Co., 2 C. C. A. 172, 51 Fed. 305, “it would he, in fact, saying that the parties may suffer the thirty days, expressly limited within which an appeal may be taken, to go by, and then revive the; right by motions for rehearing made only to be dismissed.”
We conclude that, if the appeal in this case was from the original; order granting the injunction, it.must be dismissed, because not taken within the 30 days provided by the statute; if it was from either one of the subsequent orders refusing to discharge, to vacate, and to dissolve the injunction, it must be dismissed, because the act of June 6, 1900, contains the whole law on the subject of appeals from interlocutory orders or decrees, and that act does not. authorize an appeal from any interlocutory order or. decree refusing-to dissolve, discharge, or vacate an order of injunction previously-granted. The appeal is dismissed. :
