Olcott v. Pendleton
| Decision Date | 07 November 1941 |
| Citation | 128 Conn. 292,22 A.2d 633 |
| Court | Connecticut Supreme Court |
| Parties | OLCOTT v. PENDLETON et al. |
Appeal from Court of Common Pleas, Hartford County; Joseph E. Klau, Judge.
Action by Harry E. Olcott against Charles P. Pendleton and others to restrain the Board of Finance of the Town of Bloomfield from removing the town manager in the exercise of the power given it to take such action in statute. From an order dissolving a temporary injunction, the plaintiff appeals. On defendants' motion to erase the appeal.
Motion granted.
Argued before MALTBIE, C. J., and AVERY, JENNINGS, and ELLS, JJ.
Allyn L. Brown, Jr., of Hartford, for plaintiff.
Arthur E. Howard, Jr., and William A. Reiner, both of Hartford, for defendants.
This is an action by a taxpayer of the town of Bloomfield, brought to restrain the board of finance from removing the town manager in the exercise of the power given it to take such action in § 434 of the General Statutes. The complaint, which is very detailed and voluminous, alleges a long course of dispute between the board and the manager. This culminated in a vote on July 10, 1941, stating that a majority of the board, after due consideration, had reached the conclusion that the manager was without the necessary qualifications for his position, with an enumeration of certain specific charges. On the night of the same day notice of the charges and of a hearing to be held upon them on July 14, 1941, was served on the manager. The complaint alleges, in substance, that action by the board upon the hearing would be illegal because a majority of its members had already reached the conclusion that the manager should be removed; that they intended, because of personal hostility, to dismiss him at any cost, even without cause; and that they threatened to prevent town expenditures regardless of town needs. The relief sought was a temporary injunction restraining the board from holding the hearing on July 14th, from holding any hearing at any time for the purpose of removing him upon charges stated in the vote, and from interfering with him in the performance of his duties and the receipt of the salary to which he is entitled, and a permanent injunction to the same effect.
On the basis of the complaint, Molloy, J., issued a temporary injunction as prayed for. Thereafter a motion to dissolve it came before Klau, J., and at the hearing on the motion, as the day set originally for the manager to appear to answer the charges had passed, a substitute form of injunction was offered, omitting the provision asking that the holding of that hearing be restrained. Judge Klau granted the motion substantially upon the ground that equity was without power or jurisdiction to interfere in a question concerning the right of a municipal officer to hold office. He did, however, continue the injunction pending a proposed appeal to this court from the order dissolving it.
The defendants have moved to erase the appeal on the ground that the order dissolving the temporary injunction was not a final judgment from which an appeal would lie. As upon the final hearing of the cause the plaintiff might still establish his right, the order was not a final judgment within the principles of former decisions we have made. Conn.App.Proc. § 96 et seq. Indeed, it is generally held that in the absence of special statutory provisions an order continuing or dissolving a temporary injunction is not a judgment from which an appeal may be taken. 3 C. J. 558; 4 C.J.S., Appeal and Error, § 144, p. 297. The words "upon final hearing" in the provision of § 5903 of the General Statutes concerning an order for continuing a temporary injunction where a judgment adverse to it is rendered do not refer to a decision upon a motion to dissolve a temporary injunction but to the final judgment in the action.
The principal contention of the plaintiff is that if the temporary injunction is dissolved, presumably the board of finance would proceed at once to remove the manager and that in fact irreparable damage would be done though the plaintiff finally prevailed in the action. Even in the absence of the statute, there is some authority that if the effect of an interlocutory decree is to do irreparable damage, an appeal will lie; see McAuslan v. McAuslan, 34...
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Aristocrat Health Club of Hartford v. Chaucer
...in that decision that appeals from interlocutory decrees could be permitted in order to prevent irreparable harm. Olcott v. Pendleton, 128 Conn. 292, 22 A.2d 633 (1941). The Olcott decision was distinguished where a husband appealed from a temporary support order. Should his wife not have p......
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Feehan v. Marcone
...matter jurisdiction over a case, it similarly lacks jurisdiction to render even a temporary injunction. See Olcott v. Pendleton , 128 Conn. 292, 295–96, 22 A.2d 633 (1941) (emphasizing difference between jurisdiction and merits with respect to temporary injunctions); cf. Park City Hospital ......
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French v. Amalgamated Local Union 376, UAW, 13059
...389, 488 A.2d 444 (1985); Board of Education v. Shelton Education Assn., 173 Conn. 81, 88, 376 A.2d 1080 (1977); Olcott v. Pendleton, 128 Conn. 292, 295, 22 A.2d 633 (1941). The defendants in this case, however, are entitled to appeal the temporary injunction because immediate review of a t......
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Mazzola v. Southern New England Telephone Co.
... ... Olcott v. Pendleton, 128 Conn. 292, 295, 22 A.2d 633 ... (S)uch an appeal lies if, but only if, the injunction was granted in a case 'involving or ... ...