71 P. 544 | Idaho | 1903
This action was commenced May 21, 1902, by plaintiffs filing their complaint, and on the same day .they filed; the...affidavit of William H; Walker; supporting all the material allegations of the complaint. The complaint, among
In view of the conclusions we have reached in this case, it will be unnecessary for us to examine into the merits- of the showing as made by the pleadings and affidavits filed and offered for the consideration of the trial judge upon the issuance of the injunction, and upon the motion to dissolve same. The vital
Section 4295 of the Bevised Statutes of 1887 provides: “If an injunction be granted without notice, the defendant, at any time before the trial, may apply to the judge who granted the injunction, or to the court in which the action is brought, to dissolve or modify the same. The application may be made upon the complaint and the affidavit on which the injunction was granted, or the answer or upon affidavit on the part of the defendant, with or without the answer. If the application be made upon affidavits on the part of the defendant, it must be upon reasonable notice to the plaintiff, and in that case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the injunction was granted.” It is now contended by appellants that, where the defendants offered their verified answer and cross-complaint in opposition to the complaint and affidavit on which the injunction had been granted, plaintiffs at once, by virtue of said section 4295, became entitled, as matter of law, to notice, and the right to have all affidavits presented by them considered on such-hearing. Section 118 of the California Practice Act was the same as section 4295, above quoted, with the exception that the words “or the answer,” following the first clause of the second sentence of our section, do not appear in the California statute. Section 532 of the California Code of Civil Procedure is the same as section 118 of the Practice Act. The California supreme court, in case of Falkinburg v. Lucy, 35 Cal. 60, 95 Am. Dec. 76, in construing section 118 of the Practice Act, in a case similar to the one here under consideration, used the following language: “The plaintiff is entitled to an injunction at the time of issuing the summons upon the complaint alone, if it makes a proper case and is verified in the manner stated in the one hundred and thirteenth section; but, if he asks for an injunction at any time thereafter, he must do so upon affidavits. If the injunction has been granted without notice to the defendant, he may move to dissolve — 1. Upon the complaint and affidavits, or, in other words, the papers, whatever they
It is contended by the able counsel for respondents that section 4801 of the Revised Statutes is controlling on the question of notice. That section is as follows: “An order made out of court, without notice to the adverse party, may be vacated or modified without notice, by the judge who made it; or may be vacated or modified on notice in the manner in which other motions are made.” This is the second section, found iinder chapter 1 of title 13 of the Code of Civil Procedure, Revised Statutes of 1887, the title of which chapter is “Appeals in General.” This is a general provision, and if it contained anything in conflict Avith section 4295, which deals -with the specific subject of injunctions, the general statute would give way to the specific one, but we do not think these statutes in conflict. Section 4801 is a general statute providing for vacating on modifying such orders, only, as are not specifically provided for elsewhere. We are cited to the case of Oro Fino Min. Co. v. Cullen, 1 Idaho, 113, as sustaining this position of respondents.
The order dissolving the injunction is reversed and vacated, and cause remanded, with direction that the district court take further proceedings in accordance with the views herein expressed. Costs awarded to appellants.