96 Mo. 56 | Mo. | 1888
Petition for writ of prohibition against respondent, judge of the St. Louis city circuit court, to restrain him from further action in a proceeding commenced in that court on the suggestion of GeorgeGlaesner against Adolphus Busch, President of Anheuser-Busch Brewing Association, et al., said proceeding being an attachment for contempt in violating a decree of injunction rendered against them in' a certain cause theretofore pending in said court, wherein the said Glaesner was plaintiff and said Brewing Association et al., were defendants, and which cause had theretofore been appealed to the supreme court.
Two questions are presented for discussion on the-return of the respondent, to which the petitioners demur. (1) Bid the állowance of the appeal to the supreme court on affidavit and bond, in the action in which the decree of injunction on final hearing was rendered, have the effect of dissolving the injunction decreed' by the circuit court, no previous temporary injunction having been granted or bond given in the cause?. (2) If the decree of injunction remained in force after the appeal to the supreme court, did the circuit court, in which the decree was rendered, have jurisdiction to punish for contempt a violation of that decree after such appeal ?
The law directly applicable to the cause and by which these questions are to be determined, is as follows (R. S. 1879, sec. 2703): “When it shall appear by the petition that the plaintiff is entitled to the relief demanded, and such relief * * * consists in restraining the commission * * * of some act of
Sec. 2710 : “No injunction, unless on final hearing, or judgment, shall issue in any case * * * until the plaintiff execute a bond with sufficient security to the other party in such sum as the court or judge shall deem sufficient to secure * * * all damages that may be occasioned by such injunction.”
Sec. 2722: “The remedy by writ of injunction shall exist in all cases * * * to prevent the doing of any legal wrong whatever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action for damages.”
Sec. 1055: “Every court of record shall have power to punish as for criminal contempt persons guilty of * * * wilful disobedience of any process or order lawfully issued or made by it.”
Sec. 3710: “Every person aggrieved by any final judgment or decision of any circuit court * * * may make his appeal,” etc.
Sec. 371,3: “* * * The court from which an appeal is prayed shall make an order allowing the appeal and such allowance thereof shall stay the execution * * * when the appellant * * * together with two sufficient securities shall, during the term at which the judgment appealed from was rendered, enter into a recognizance,” etc.
Sec. 3718: “ On filing such recognizance there shall be a stay of all further proceedings upon the judgment áppealed from,” etc.
Sec. 3776: ‘£ The supreme court in appeals * * shall examine the record, and award a new trial, reverse or affirm the judgment or decision of the circuit court, or give such judgment as such court ought to have given, as to them shall seem agreeable to law,” etc.
To secure a party against an infraction of his rights that would be adequately remediless in damages, the statute has provided that, before these rights are definitely ascertained and declared, a provisional writ shall issue restraining the threatened wrongful act pending the litigation in the circuit court. In such cases the law requires that a bond be given. When those rights are definitely ascertained and declared on final hearing in that court, the writ issues, restraining in perpetuam the threatened wrongful act, in which case no bond is required, but whenever issued, it operates in praesenti, and for the time being, to restrain that act. It commands no act to be done, issues in contemplation of law the moment the order is made (High on Inj., sec. 21; McNeil v. Garratt, 1 Cr. & Ph. 98); operates upon the then status of things between the parties in respect of the subject-matter in controversy, and decrees that they stand fast forever.
From this situation, in case of error, the law affords
Our law regulating practice in injunction and appeals is essentially the same as that prevailing in the federal courts and those of the other states, and the overwhelming weight of authority is that injunctions ordered on final hearing on the merits are not vacated by an appeal from that decree. A stay of proceedings from its nature operates only on orders and judgments
In the opinion in this last case, Waite, C. J., remarks: “It is true that in some of the Slaughter House cases the appeal was from a decree. making perpetual a preliminary injunction which had been granted in an earlier stage of the case, but the fact of the preliminary injunction had nothing to do with the decision, which was ‘ that neither an injunction nor a decree dissolving an injunction is reversed or nullified by an appeal or writ of error before the cause is heard in this court.’ This doctrine in the general language here stated was distinctly reaffirmed in Hovey v. McDonald, and it clearly refers to the injunction contained in the decree appealed from, without reference to whether that injunction was in perpetuation of a former order to the same effect, or was then for the first time granted.”
It follows from what has been said that the answer to the first question is that the decree of the circuit court of St. Louis on final hearing in the case stated was not dissolved on the perfection of the appeal therein, but remained in full restraining force against the defendants therein, and will continue to so remain until that appeal is decided. Being so in force, the answer to the second is, that whoso violates it is guilty of a contempt of the
The demurrer to the return of the respondent is overruled, writ denied, and judgment for respondent -ordered.