D.C. Water Power Co v. Same

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: GARY, A. J
• Citation: 73 s. c. 560,53 S.E. 996
• Parties: COLUMBIA WATER POWER CO. v. NUNAMAKER (four cases). SAME v. BEARD-EN et al. SAME v. HUFFMAN. SAME v. YOUNGINER.
• Decision Date: 30 January 1906

53 S.E. 996
73 s. c. 560

COLUMBIA WATER POWER CO.
v.
NUNAMAKER (four cases). SAME
v.
BEARD-EN et al. SAME
v.
HUFFMAN. SAME
v.
YOUNGINER.

Supreme Court of South Carolina.

Jan. 30, 1906.

On Rehearing, April 2, 1906.

1. Injunction—Restraining Condemnation Proceedings—Bond.

Where an action is brought to enjoin condemnation proceedings, and the court grants a demurrer restraining order against them, he

[53 S.E. 997]

cannot dispense with the injunction bond required by Code Civ. Proc. 1902, § 243.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Injunction, §§ 323, 324.]

2. Same—Ancillary Suit.

The rule that a bill filed on the equity side of a court to restrain suits at law in the same court is not an original suit, but ancillary to the original suit, does not apply to a suit in the common pleas to restrain condemnation proceedings instituted in a special statutory tribunal from which an appeal could be taken to such court.

3. Constitutional Law — Equal Protection of Laws.

Where plaintiff seeks to restrain condemnation proceedings, that the court requires of him a bond before granting the injunction, while no such bond was required of defendant, does not deny to plaintiff the equal protection of the laws.

Appeal from Common Pleas Circuit Court of Lexington County; Gary, Judge.

Actions by the Columbia Water Power Company against Arthur S. Nunamaker, against E. F. Nunamaker, against Eliza M. Nunamaker; against Lizzie Bearden and others, against Susan G. Huffman, against S. P. Younginer, and against Martha C. Nunamaker. From an order requiring plaintiff to give in each case a temporary injunction bond, It appeals. Affirmed.

The following are the exceptions: "Please take notice that the plaintiff in the above entitled seven cases excepts to so much of the order of Judge Ernest Gary, of date 28th June, 1905, which provides that the continuance of the restraining orders previously granted by him on June 12, 1905, in each of said seven cases, be conditioned upon the plaintiff in each of said cases filing a written undertaking with surety within 10 days, to the effect that plaintiff will pay to the defendants such damages, not exceeding $200, as they may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto, and that it will ask that the order be reviewed upon any appeal now or hereafter taken from any order or final judgment therein, upon the following grounds: (1) Because the bringing and filing by the plaintiff of its several actions against the defendants above named, to have determined the question of the right of said defendants to condemnation, suspended the statutory proceedings for condemnation brought by the defendants until the trial and determination of the issue as to the right to condemnation and compensation; and the presiding judge should, as requested by plaintiff, have passed an order simply directing that, as said actions had been commenced, all further steps should be and thereby were suspended until the determination of the question of the right of defendants to condemnation. (2) Because, upon the bringing and filing by the plaintiff of its several actions to determine the question of the right of defendants to condemnation, the presiding judge, on 12th June, 1905, granted orders restraining the defendants from prosecuting their statutory proceedings for condemnation, and the plaintiff was entitled to a continuance of said orders without the condition that it give an undertaking to pay defendants damage in any amount, and the presiding judge erred in his order of June 28, 1905, in making the continuance of his previous restraining orders conditioned upon the giving of an undertaking to pay damages to defendants. (3) Because the undertaking referred to in section 243 of the Code of Civil Procedure of 1902 does not apply to the actions brought by the plaintiff herein, with regard to and concerning the special condemnation proceedings instituted by defendants, and neither under said...