Town of Wakarusa v. Bechtel

• Decision Date: 29 March 1948
• Docket Number: 28401.
• Citation: 78 N.E.2d 161,226 Ind. 101
• Parties: TOWN OF WAKARUSA et al. v. BECHTEL.
• Court: Indiana Supreme Court

78 N.E.2d 161

226 Ind. 101

TOWN OF WAKARUSA et al. v. BECHTEL.

No. 28401.

Supreme Court of Indiana

March 29, 1948

Appeal from Elkhart Circuit Court; Aldo J. Simpson, Judge.

Church & Chester, of Elkhart, and Owen B. Leonard, of Wakarusa for appellants.

Davis & Schaefer, of Goshen, for appellee.

YOUNG Judge.

This action was brought by appellee against the appellants to enjoin appellants from constructing and maintaining a sanitary sewer designed and intended to carry noxious sewage and filth which it was alleged would be discharged into an open ditch at a point adjacent to real estate owned by appellee and would flow through said ditch across appellee's land immediately adjacent to a farm house farm buildings and a separate residential home on appellee's land, and that the sewage and filth from said sewer would accumulate and create a nuisance and reduce and destroy the value of appellee's real estate and injure appellee in the use and enjoyment of his real estate.

On the same day that the complaint was filed, appellee filed his affidavit for a temporary restraining order, in which he alleged he had a good and meritorious cause of action against appellants and that a contract had been let for the immediate construction of the sewer described in the complaint, and that the contractors were about to commence construction of said sewer and that such action would cause irreparable damage to him. He prayed for 'an immediate restraining order' and filed bond, which was conditioned upon the payment of all damages and costs which may accrue by reason of 'the restraining order or temporary injunction herein granted.' The court approved the bond and entered a restraining order and ordered that the defendants be notified that an application for a temporary injunction herein be heard on November 7, 1947. On November 5, 1947, appellants filed their verified motion to dissolve 'the restraining order and temporary injunction' alleging facts not appearing upon the face of the complaint. On December 11, the court, without hearing, overruled defendant's motion to dissolve. Appeal was thereupon taken to this court. Appellants assigned as error only the overruling of their motion 'to dissolve temporary injunction.'

The only injunctive order made in this cause was made on the day the suit and petition for temporary restraining order was filed. That order begins, 'And this proceeding being submitted to the court upon said application for restraining order, and the court being duly advised in the premises finds that the plaintiff is entitled to a restraining order as therein prayed for; and that the bond of plaintiff is sufficient.' It is then ordered that the defendants be restrained and enjoined from proceeding in the establishment and construction of said sewer during the pendency of the action and until further order of this court. It was further ordered that the defendants be notified that an application for temporary injunction would be heard on the 7th day of November, 1947.

It is true that in the order defendants were restrained and enjoined and in the motion to dissolve it was prayed that the restraining order and temporary injunction be dissolved, but at no time was there any temporary injunction, as that term is used in our practice, ever entered in this case. The only injunctive order was the order made when the action was begun and affidavit and bond for temporary restraining order were filed. It does not appear from the record that any hearing for a temporary injunction was ever held and on the motion to dissolve it does not appear that either party introduced any evidence, either written or oral.

Our statute, with reference to appeals from interlocutory orders provides specifically that such appeal may be taken from orders granting or refusing to grant, or dissolving, or overruling motions to dissolve, temporary injunctions. Section 23218, Burns' 1946 Replacement. The statute does not, at any place, provide for appeals from interlocutory orders granting restraining orders or dissolving or overruling motions to dissolve restraining orders and we have held that the statute does not apply to restraining...