33 Cal. 385 | Cal. | 1867
The respondent moves to dismiss the appeal, on the ground that no appeal lies from an ex parte order made by the Judge at Chambers granting an injunction. Section one hundred eleven of the Practice Act authorizes a Judge at Chambers or a County Judge to grant the order, “ and when made, it may be enforced as the order of the Court.” Thus, although made by the Judge, it virtually becomes the act of the Court. The order is an order granting an injunction, when made ex
It is said that no case can be found in the California Reports, in which the right to appeal from an ex parte order granting an injunction has been determined, and that this fact indicates a practical construction of the Act against the right. But the absence of such a determination may easily be accounted for upon other principles. Ordinarily, when time is important, the party temporarily enjoined would seek the quickest mode of relieving himself from the order; and obviously, that would be to apply at once to the Judge who made it, either without or upon notice, as the exigencies of the case might seem to render most advisable, to dissolve it. Probably in ninety-nine cases out of a hundred this would be the course pursued. But the action of the Judge, whatever it might be upon the application, would not be final, for whether he dissolved, or refused to dissolve, the injunction, the losing party would be entitled to appeal. A case might,
Under the views expressed the motion to dismiss the appeal must be denied, and it is so ordered.