155 Ind. 27 | Ind. | 1900
— Appellees' motion to dismiss rests upon the contention that appellant is complaining of an interlocutory order from which no appeal lies.
The claim of appellant is based on the fact that the order of May 8th reads that “the prior order granting a temporary injunction is set aside and said injunction dissolved” and also on the fact that the order of March 15th continued in force the temporary restraining order issued on March 3rd, “until the further order of the court”. In determining the sense and scope of these orders, it is not permissible to isolate particular words and take their abstract meaning as decisive. But the full context of the orders should be examined in connection with the subject-matter of the questions that were being presented to the court to act upon.
It is true that the words “until the further order of the court” taken alone would indicate a temporary injunction rather than a temporary restraining order. But the order of March 15th taken as an entirety, shows that on the day fixed for the hearing on the application for a temporary injunction the hearing was postponed to May 7th, and the temporary restraining order, issued on March 3rd, without notice and without a hearing, was continued in force “until the further order of the court”. The order further shows that this was done upon the stipulation of the parties. Though the hearing on the application for a temporary injunction
The words in the order of May 8th that the “temporary injunction is set aside and said injunction dissolved” indicate an appealable interlocutory order. But there are two considerations that prove that by mistake the word injunction was used in the place of restraining order. One is that the order reads “and the prior order granting a temporary injunction is set aside”. The prior order was the temporary restraining order of March 3rd, which on March 15th was continued in force until a hearing could be had on the question of granting a temporary injunction. The other is that no hearing on the question of granting a temporary injunction was had until May'8th, and that then the application was denied. The infallible distinction between a temporary restraining order and a temporary injunction is that the former issues without notice on a showing of emergency and the latter issues only after notice and hearing. §§1164, 1165 Burns 1894, §§1150, 1151 R. S. 1881 and Horner 1897.
An interlocutory order denying a temporary injunction and vacating a temporary restraining order theretofore is
Appeal dismissed.