State ex rel. Willapa Power Co. v. Superior Court, 121 Wash. 442

121 Wash. 442 | Wash. | 1922

Per Curiam.

The relator brought an action in the superior court for Pacific county against the city of South Bend to enjoin it from carrying out a threatened violation of a contract it claimed to have and was engaged in carrying out for supplying electric lights for the streets of the city. An emergency restraining order was issued without notice, and thereafter a motion came on for hearing as to whether a temporary injunction should be issued. The court refused to grant a temporary injunction and dissolved the restraining order theretofore issued. At the same time the court refused the request of the plaintiff therein to find that the city was insolvent. Thereupon, at the instance of the relator, the matter has been presented here by writ of review, by which an order is sought finding the city to be insolvent, or, in the alternative, “continuing in effect the temporary supersedeas heretofore issued by the court and requiring the respondents to desist from any further proceeding until the further order of this court, to be made after a hearing upon the merits in the superior court and the determination of the case upon appeal.”

Upon the record, which shows the pleadings in the trial court, consisting of the complaint, answer and reply, and also a stenographic report of the proceedings had on the return day of the show cause order, we are satisfied the court was right in refusing to find the city to be insolvent.

There being no right of appeal by statute, § 1716, subd. 3, Bern. Compiled Stat., from an order denying a temporary injunction, in the absence of an affirmative finding that the defendant is insolvent, relator appeals to the inherent powers of this court as a court of equity for the right of a supersedeas during further litigation on the merits. On former occasions that power has been appealed to and sometimes the relief has been granted, while at others it has been denied. It has been made clear in all of our cases on the subject, however, that the power will be exercised with caution and that the granting of a supersedeas is a matter of discretion. In the present case the pleadings for the trial of the ease on its merits present a number of important issues of both law and fact, and while our present conclusion shall be taken in no way as prejudging the case upon its merits, we do not feel justified upon a full consideration of the record to grant the relief prayed for. We are not sufficiently satisfied that any substantial right of the relator would be injured by the refusal of the supersedeas. The situation is similar in principle to what it is in the case of a denial by a trial court of an injunction during suit, of which this court said in Colby v. Spokane, 12 Wash. 690, 12 Pac. 112: “It was not made to appear that the defendant, the city of Spokane, was insolvent, or that full compensation for the illegal acts charged could not he had in an action at law.”

The order of the trial court is affirmed, supersedeas denied, and the writ heretofore issued set aside.