Johnson v. Wide West Mining Co. , 22 Cal. 479 ( 1863 )

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an appeal from an order refusing to dissolve an injunction restraining the defendants from working a certain ledge of silver ore in Mono County. The complaint was filed on the seventeenth day of July, 1862, and notice was given to the defendant, at half-past ten o’clock, A. M., that the plaintiffs would apply for an injunction at two o’clock, p. m., of the same day. The defendants failed to appear at the time fixed by the notice, and the injunction was granted upon the verified complaint. The defendants served and filed their answer, duly verified, denying all the material allegations of the complaint, on the twenty-first day of July. They notified the plaintiffs on the eighteenth that they would, on the twenty-third day of July, move to dissolve the injunction on the complaint and the answer thereto. The parties appeared, the plaintiffs filed their replication to the answer, the motion was submitted upon the pleadings, and the Judge refused to dissolve the injunction.

The notice of the motion for an injunction having been only a few hours, was entirely insufficient under Sec. 517 of the Practice Act, and the defendants not having appeared to the motion, the order granting the injunction is to be deemed to have been made without notice, and the defendants had the right to apply to the Court to dissolve it. The answer of the defendant denies all the material allegations of the complaint on which the injunction was granted, and the complaint being entirely unsupported by any affidavits or other proof, the Judge erred in refusing to dissolve the injunction.

The order granting the injunction is dissolved.