Wetzstein v. Boston & M. Consol. Copper & Silver Min. Co.
| Decision Date | 12 March 1901 |
| Citation | 63 P. 1043,25 Mont. 135 |
| Parties | WETZSTEIN v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. |
| Court | Montana Supreme Court |
Appeal from district court, Silverbow county.
Action by Adolph Wetzstein against the Boston & Montana Consolidated Copper & Silver Mining Company. Order restraining defendant and it appeals, and petitions for an order of supersedeas. Petition denied.
Forbis & Evans, for appellant.
McHatton & Cotter and J. M. Denny, for appellee.
This cause comes now before this court upon the petition of the defendant for an order of supersedeas staying a certain restraining order issued by the district court on February 18, 1901, pending a hearing of an order to show cause, on April 2, 1901, why a temporary injunction may not issue enjoining the defendant from continuing certain work in and about the Comanche lode claim. On the 25th day of February 1901, the defendant appealed from the order so restraining the defendant pending the hearing on the order to show cause why a temporary injunction should not issue. Respondent contends that this court has no jurisdiction to grant the petition, for the reason that there is no appeal to this court from a restraining order. We are of the opinion that respondent is right in the position he takes. Section 873 of the Code of Civil Procedure very clearly makes a distinction between an injunction and a restraining order. A restraining order is distinguishable from an injunction, in that a restraining order is intended only as a restraint upon the defendant until the propriety of the granting of an injunction, temporary or perpetual, can be determined, and it does no more than restrain the proceedings until such determination. Such an order is limited in its operation, and extends only to such reasonable time as may be necessary to have a hearing on an order to show cause why an injunction should not issue. 10 Enc. Pl. & Prac. 878; Railroad Co. v. Moss, 77 Ind. 139; Hicks v. Michael, 15 Cal. 107; San Diego Water Co. v. Pacific Coast S. S. Co., 101 Cal. 216, 35 P. 651; Fenwick Hall Co. v. Town of Old Saybrook (C. C.) 66 F. 389; Strickland v. Griffin, 70 Ga. 541.
It is the plain duty of a court to set the order to show cause at a very early day, and, upon the application of the defendant to shorten the time, to the end that, if the facts on the hearing warrant it, the restraining order may be discharged. In such a case, appeal from a restraining order is not possible or contemplated, for the reason that on the hearing, or soon thereafter, the court, in the discharge of its duty, will grant or refuse an injunction, and in either event the restraining order is dead. The law presumes that a judge will be fair and just, and will not put off the hearing of the order to show cause until a day so distant that by the force of his own despotic will a mere temporary expedient, to wit, a restraining order, granted ex parte and without bond, perhaps, will become an injunction. A judge might, over the objection of the plaintiff, set a demurrer to a complaint for hearing at a time one year ahead. This might work great injury to the plaintiff, but the remedy of the injured plaintiff could not be by appeal from the order so setting the hearing on demurrer. We are aware that in Bennett Bros. Co. v. Congdon, 20 Mont. 208, 50 P. 556, the court decided that a restraining order was an order from which an appeal might be taken, and that in Boston & M. Consol. Copper & Silver Min. Co. v. Montana Ore-Purchasing Co., 24 Mont. 135, 63 P. 830, the court considered such an appeal; but the point in the latter case, considered on appeal, was simply whether or not the complaint was properly verified. The rule of stare decisis does not here control, as it is not unusual, but proper;...
To continue reading
Request your trial