57 S.E. 1096 | S.C. | 1907
July 23, 1907. The opinion of the Court was delivered by This is an appeal from an order discharging a rule to show cause, and dissolving a former *417 order, whereby the respondents were temporarily restrained from operating, on a designated street in the city of Columbia, certain shows and attractions for and during the week of the Fair, at the instance of the Chamber of Commerce, and with the consent and approval of the City Council of said city.
On the 25th of October, 1906, his Honor, Judge Gary, granted an order requiring the defendants to show cause, on the 27th of October, why they should not be enjoined from obstructing the street therein mentioned; and further ordered that the defendants be restrained in the meantime, upon the plaintiff entering into a bond in the sum of $1,000, to indemnify the defendants, for any damages they might sustain by reason of said order.
On the 29th of October, 1906, the Circuit Judge signed the following order:
"Upon hearing the return of the respondents and attached affidavits to the rule to show cause herein, and after argument of counsel:
"It appears to the Court that the obstructions complained of by the plaintiffs are mere temporary structures, placed in the street under license of the City Council, who had theright to grant such privilege, and the same were so situated as in no way to interfere with the free use of the street for purposes of travel and access to the abutting property of the plaintiffs; and further, that the injury complained of by theplaintiffs is not caused by the alleged obstruction but is consequential,and is not such injury as is special and peculiarto them, differing in kind as well as in degree to that of therest of the public, so that even though the obstructions he alleges be a public nuisance, the plaintiffs are not entitled to the relief sought.
"It is ordered: That the returns are sufficient and the rule be discharged.
"Further ordered: That the temporary restraining order heretofore granted in this case be, and the same is hereby, set aside. *418
"Let the returns and affidavits, together with all papers in the cause, be filed in the office of the clerk of the Court for Richland County."
The plaintiff appealed.
The respondents made a motion, upon the call of the case in this Court, to dismiss the appeal upon the following grounds:
1. "Because it appears from the affidavits and papers above referred to that the shows and attractions complained of had, prior to the service of the exceptions upon which this appeal is based, been removed, and if the said shows and attractions had created a nuisance, as complained of in said complaint, then that the said nuisance had been abated, and so any further consideration of the order of the Circuit Judge, discharging the rule to show cause and dissolving the temporary injunction, would prove but an abstract question and speculative only in its nature.
2. "Because the order from which this appeal has been taken is not appealable, since it does not appear that a continuance of the said temporary restraining order was necessary for the preservation of any legal right of the complaint.
3. "Because it appears from the affidavit hereto attached that the plaintiff, W.C. Wright, has recovered from the illness from which he was at that time suffering and that he has been for many months past upon the streets of the city, in the regular discharge of his ordinary vocation, apparently in his usual health."
The order, dated 25th October, 1906, requiring the defendants to show cause, and in the meantime restraining them, must be regarded as having been issued under the provisions of Section 244, of the Code, which is as follows: "If the Court or Judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction *419 should not be granted; and the defendant may, in the meantime, be restrained."
In the case of Creech v. Long,
The Circuit Judge, however, had the discretionary power to require the undertaking.
The force and effect of the order dated 29th of October, dissolving the temporary restraining order and refusing to continue the injunction, is shown by the following language of the Court, in the case of Alston v. Limehouse,
In the case of R.R. Co. v. Terminal Co.,
The question whether the plaintiff is entitled to an injunction is now merely speculative, and there would be no practical benefit to the plaintiff in reversing the said order, even if this Court should conclude that there was error.
The question, however, whether the plaintiff is entitled to damages for the alleged obstruction, during the time it existed, can only be determined when the case is heard upon the merits (which right, of course, is still left open).
It is the judgment of this Court, that the motion be granted and the appeal dismissed.