Mason v. Milligan

• Decision Date: 09 November 1916
• Docket Number: No. 23124.,23124.
• Citation: 114 N.E. 3,185 Ind. 319
• Parties: MASON et al. v. MILLIGAN et al.
• Court: Indiana Supreme Court

185 Ind. 319

114 N.E. 3

MASON et al.

v.MILLIGAN et al.

No. 23124.

Supreme Court of Indiana.

Nov. 9, 1916.

Appeal from Circuit Court, Hancock County; Earl Sample, Judge.

Action by Benjamin F. Mason and others against Harry J. Milligan and others. From an order dissolving a temporary restraining order, plaintiffs appeal. Dismissed.

John B. Hinchman, of Greenfield, Henry A. Lee, of Bloomington, and E. E. McFerren, of Indianapolis, for appellants. J. J. Daniels, of Indianapolis, for appellees.

ERWIN, J.

Action was brought by appellants, in the superior court of Marion county, against appellee Milligan, for damages for the wrongful conversion of certain property, and to enjoin the delivery of a deed of conveyance by appellee Jones, as sheriff of Monroe county, Ind., which the complaint alleges was about to be delivered by said sheriff to his codefendant and appellee Milligan in conformity to the terms and conditions of a certain certificate of sale, issued by said sheriff to said Milligan on a sale on a certain judgment, obtained by said Milligan against appellants in the Morgan circuit court.

Upon filing of the complaint a temporary order was issued by the court, in conformity with the allegations and prayer of the complaint, without hearing or notice, and a time was then fixed, by the court, for the hearing of the application for a temporary injunction, and directing a notice to issue for appellees of the time and place for such hearing. Before the date fixed for the hearing and before the maturity of the notice, appellees appeared and filed a motion to dissolve the order theretofore made. In the order of the court heretofore referred to, the words “temporary injunction” were used.

The venue of the cause was afterwards changed to the circuit court of Hancock county, where, after due consideration of said motion to dissolve the order theretofore issued, the judge of said court dissolved the “restraining order” or “temporary injunction.” From this action of the court, appellants appealed to this court.

Appellees have here moved to dismiss this appeal, on the grounds that no appeal will lie from an order of the circuit court dissolving a temporary restraining order; contending that the order issued by the court was only a restraining order, notwithstanding that the same was designated by the court, and by the parties in the record and pleadings, as a “temporary injunction.” Appellants contend that by designating the order “temporary...