State v. Pennoyer

• Citation: 41 P. 1104,26 Or. 205
• Parties: STATE v. PENNOYER.
• Decision Date: 14 January 1895
• Court: Oregon Supreme Court

41 P. 1104

26 Or. 205

STATE v. PENNOYER.

Supreme Court of Oregon

January 14, 1895

On motion to recall mandate. Granted.

For original opinion, see 37 P. 906.

PER CURIAM.

The application to recall the mandate in this case is based upon the assumption that a preliminary injunction was issued by the court below which has been in terms dissolved by the decree or judgment in this court, entered by the clerk, which entry was made under the impression that no such injunction was issued. The decision heretofore made proceeds upon the theory that the complaint does not state a cause of suit, and for that reason it was error in the court below to overrule the demurrer, and enter a decree as prayed for in the complaint. But, because it was thought the defect could perhaps be remedied by amendment, the cause was ordered remanded for further proceedings not inconsistent with the opinion, so that plaintiff might thereby be given an opportunity to apply in the court below for leave to amend, if so advised. This conclusion necessarily reversed and annulled the decree of the court below making the injunction perpetual, but it was not intended or designed to interfere with or disturb any preliminary injunction which may have been issued by the court. It was the intention to leave the case in statu quo until plaintiff could have an opportunity, by permission of the court below, to frame a complaint, if the facts justified, so as to present the important public question which it desired to have decided. It is not clear from the record whether a preliminary injunction was in fact issued or served, but, in order to avoid any question as to the effect of the order in this court reversing the decree, the mandate will be recalled, and the decree amended so as not to interfere with any preliminary injunction or restraining order which may have been issued by the court below. The case was decided on the 16th of November, 1893, and the mandate issued on the 13th of the following month, and then at the request of both parties, and it is to be regretted that counsel for plaintiff did not take the precaution to observe the form of the decree before the mandate was issued, and thereby obviate the delay incident to this proceeding.