State v. Dillon

• Decision Date: 18 June 1888
• Citation: 8 S.W. 781,96 Mo. 56
• Parties: STATE ex rel. ANHEUSER-BUSCH BREWING ASS'N et al. v. DILLON, Judge.
• Court: Missouri Supreme Court

8 S.W. 781

96 Mo. 56

STATE ex rel. ANHEUSER-BUSCH BREWING ASS'N et al. v. DILLON, Judge.

Supreme Court of Missouri.

June 18, 1888.

APPEAL — EFFECT — INJUNCTION.

The allowance of an appeal to the supreme court, on affidavit and bond from a final decree granting an injunction, does not have the effect of dissolving the injunction, and the lower court has jurisdiction to punish a violation of such decree after the appeal.

On original proceedings for writ of prohibition.

Broadhead & Haeussler, for relator. A. M. Sullivan, E. L. Carter, and Rassieur & Tiffany, for respondent.

BRACE, J.

Petition for writ of prohibition against respondent, judge of the St. Louis circuit court, to restrain him from further action in a proceeding commenced in that court, on the suggestion of George Glaisner, against Adolphus Busch, president of said association, et al., for attachment for contempt in violating a decree of injunction rendered against them in a certain cause theretofore pending in said court wherein the said Glaisner was plaintiff and said brewing association et al. were defendants, and which cause had theretofore been appealed to the supreme court. Two questions are presented for discussion on the return of the respondent, to which the petitioners demur: (1) Did the allowance of the appeal to the supreme court on affidavit and bond, in the action in which the decree of injunction on final hearing was rendered, have the effect of dissolving the injunction decreed by the circuit court, — no previous temporary injunction having been granted or bond given in the cause? (2) If the decree of injunction remained in force after the appeal to the supreme court, did the circuit court in which the decree was rendered have jurisdiction to punish for contempt a violation of that decree after such appeal? The law directly applicable to the case, and by which these questions are to be determined, is as follows: Rev. St. 1879, § 2703: "When it shall appear by the petition that the plaintiff is entitled to the relief demanded, and such relief * * * consists in restraining the commission * * * of some act of the defendant, the commission of which, during the continuance of the litigation, would produce injury to the plaintiff, an injunction may be granted to stay such act." Section 2710: "No injunction, unless on final hearing, or judgment, shall issue in any case * * * until the plaintiff execute a bond, with sufficient security, to the other party, in such sum as the court or judge shall deem sufficient to secure * * * all damages that may be occasioned by such injunction." Section 2722: "The remedy by writ of injunction shall exist in all cases * * * to prevent the doing of any legal wrong whatever, whenever, in the opinion of the court, an adequate remedy cannot be afforded by an action for damages." Section 1055: "Every court of record shall have power to punish as for criminal contempt persons guilty of * * * willful disobedience of any process or order lawfully issued or made by it." Section 3710: "Every person aggrieved by any final judgment or decision of any circuit court * * * may make his appeal," etc. Section 3713: "The court from which an appeal is prayed shall make an order allowing the appeal, and such allowance thereof shall stay the execution, * * * when the appellant, * * * together with two sufficient securities, shall, during the term at which the judgment appealed from was rendered, enter into a recognizance," etc. Section 3718: "On filing such recognizance, there shall be a stay of all further proceedings upon the judgment appealed from," etc. Section 3776: "The supreme court in appeals * * * shall examine the record, and award a new trial, reverse or affirm the judgment or decision of the circuit court, or give such judgment as such court ought to have given, as to them shall seem agreeable to law," etc.

No system of jurisprudence would be complete that did not embrace within its scope a plan for the prevention of wrongs, as well as compensation for violated rights. The reason for the existence, in our system, of the preventive writ of injunction, is that in very many instances the commission of an act violative of the rights of others is not susceptible of adequate compensation in damages. In statutes enacted for the purpose of regulating the administration of this remedy by the courts, the substitution of the inadequate remedy of compensation in damages for a wrong perpetrated for the adequate remedy designed to prevent the perpetration of that wrong, is never contemplated, is foreign to and at war with the spirit and purpose of such enactments, and such a result cannot flow from a proper construction of them. Nothing can be found in the letter of the foregoing enactments, or in the history of our legislation on the subject, to warrant it. To secure a party against an infraction of his rights that would be adequately remediless in damages, the statute has provided that, before their rights are definitely ascertained and declared, a provisional writ shall issue, restraining the threatened wrongful act...