Hicks v. Michael

Citations

• 15 Cal. 107
• 1860 Cal. LEXIS 64

Syllabus

<p>Where, under the one hundred and sixteenth section of the Practice Act, an order is made to show cause why an injunction should not be granted, and restraining defendants until the hearing, and on the hearing upon the order the injunction is refused, the restraining order expires by limitation.</p> <p>An appeal from an order refusing to grant an injunction upon such hearing, or from an order dissolving an injunction, does not create an injunction or prolong the restraining order in the former case, nor revive it in the latter, pending the appeal.</p> <p>It is only of orders or judgments which command or permit acts to be done, that a stay of proceedings on appeal can be had.</p> <p>The Court below may, on proper showing, revive an injunction once dissolved, or grant an injunction previously denied, and this is the extent of its power when the matter has been once disposed of.</p> <p>The Supreme Court has no power to grant an injunction pending an appeal.</p> <p>The complaint avers title in plaintiff to a tract of land, that the possession of defendants is forcible and unlawful, that an action for forcible entry has been commenced by plaintiff against defendants, and is still pending and undetermined, and asks for an injunction to restrain defendants from cutting and removing timber from the land, without seeking in this suit to be restored to the possession, the object of the suit being to preserve the property during the pendency of that action. Hdd, that injunction lies, although no action at law has been brought to try the title; that the jurisdiction of equity in such cases to grant, first, a temporary and subsequently a perpetual injunction, does not depend upon the question whether or not such action at law has been brought, that the rule under the English Chancery system was the same, and that our statute is not more restrictive.</p> <p>Where the title of plaintiff is disputed in the answer the usua practice has been to ask the assistance of equity in aid