Jordan v. Wilson

The opinion of the Court was delivered by Mr. Justice Jones. This appeal is from an order by Judge Gary, dated June 26, 1903, dissolving a temporary order of injunction made herein by Judge Purdy on June 1st, 1903, the ground for dissolving said injunction being that it “was granted before action was commenced and not upon notice.” The controlling question presented by the several exceptions is whether Judge Purdy’s order of June 1st was without jurisdiction. • The summons was attested by the clerk and dated April 23, 1903, and on same day Judge Purdy signed an order requiring defendant at time and place named to show cause why a temporary order of injunction should not be granted pending the suit, and also pending the hearing of the motion restraining defendant, his agents, &c., from doing the acts complained of in the complaint. On the 24th day of April, 1903, 'the summons, together with the complaint and the rule and restraining order, were simultaneously served upon the defendant. The defendant thereafter, without raising any question as to the defect now complained of, answered the complaint and made return to the rule to show cause, which resulted in the order of Judge Purdy. 1 It is contended, in support of Judge Gary’s order of dissolution, that Judge Purdy’s restraining order of April 23, continued by the order of June 1, whs void because issued without notice and before the action was commenced. This contention assumes that the order of June 1, continuing the order of April 23, depends as matter of jurisdiction upon the validity of the order of April 23, but this is a fundamental mistake. The restraining order of April 23 merely restrained pending the hearing of the rule to' show cause, and was superceded by the order of June 1, which was intended to operate pending the litigation on the merits. It is true, the order of June 1, in terms, orders "“that the temporary restraining order (of April 23) be and *258 the same is hereby continued of force pending the hearing of this cause on its merits, and until the further order of this Court, restraining the defendant, his agents and servants, from doing or committing any of the acts complained of in the complaint;” but the legal effect of this is merely to grant a temporary injunction pending the suit and dating from June 1st, the order of April 23d becoming functus officio. The jurisdiction to pass the order of June 1st depends upon the status as it existed on that date. At that time the summons and complaint had been served. The rule to show cause was in effect a notice of application for a temporary injunction; so that on June 1st, not only had the action been commenced, but notice of application for injunction had been given for the usual period. 2 The power to1 grant the restraining order of April 23 is, therefore, not squarely before us; but let us examine that question as a matter of practice. Sec. 241 of the Civil Code of Procedure provides, “The injunction may be granted at the time of commencing the action, or at any time afterwards before judgment, upon its appearing satisfactorily to the Court or Judge, &c.” Sec. 242 provides that “An injunction shall not be allowed after the defendant shall have answered, unless upon notice or upon an order to show cause; but in such case defendant may be restrained until the decision of the Court or Judge granting or refusing the injunction.” Sec. 244 provides, “If the Court or Judge deem it proper that the defendant or any of several defendants should be heard before granting the injunction, an order may be made requiring cause to be shown at a specified time and place why the injunction should not be granted; and the defendant may in the meantime be restrained.” It is manifest, therefore, that such interim restraining order may be made without notice. Watson v. Savings Bk., 5 S. C., 159; Meinhard v. Youngblood, 37 S. C., 227, 16 S. E., 771. It is argued, however, that civil actions are commenced by the service of a summons as provided in sec. 148, or at least by lodging the summons with the sheriff or other officer, *259 with intent that it shall be actually served, as provided in sec. 120, Civil Code Procedure, and that the Judge had no jurisdiction on April 23 to issue restraining order prior to the service or lodging for service of the summons. Sec. 160 of the Code Procedure, however, provides, “From the time of the service of the summons in a civil action or the allowance of a provisional remedy, the Court is deemed to • have acquired jurisdiction and to have control of all subsequent proceedings, &c.” It thus appears that jurisdiction may begin at the time of the allowance of a provisional remedy. The restraining order of April 23 was a provisional remedy. Moreover, by sec. 241, Code Procedure, it is expressly provided that injunction may be granted at the time of the commencement of the action. If the action is commenced by service of the summons, then the statute permits the granting of an injunction simultaneously with the service of the summons, or with a lodging of the summons with an officer for service, if that be deemed a commencement of the action. Viewing the matter from a practical standpoint, it is not reasonable to suppose that the legislature meant that the preliminary injunction should be signed simultaneously with the service or lodging for service of summons, in order to; be granted at the commencement of the action; on the contrary, it would seem to be clear that such injunction might be granted on presentation to a judge of the summons and a proper complaint or proofs, a reasonable time before actual service or lodging for service of the summons, with a view that such order may be served along with the summons. Any other construction would practically deny the statutory right to1 an injunction at the commencement of the action; for it is not conceivable that a judge can always be available to grant an injunction at the moment of service of a summons. The statute can only be fully met by permitting an injunction order to be served with the summons, necessarily involving the signing of the order before such service. In 10 Ency. PI. & Pr., 1026, it is stated that there is no objection to the service of the injunction and subpoena upon the de *260 fendant at the same time. The provision allowing injunction at the commencement of the action is not substantially different from sec. 608, Civil Code Procedure of New York, which provides that an injunction “may be granted to accompany the summons or at any time after the commencement of the action, &c.” In the case of Daly v. Amberg, 126 N. Y., 490, 27 N. E. Rep., 1038, the Court held, under said section, that an injunction granted on presentation of summons and proper complaint, &c., was not void,, even though it was served on the agents of defendant previous to- the service of summons on the defendant. The Court, in reference to. the case of Leffingwell v. Chase, 5 Bosw., 703, apparently with approval, said that case “was a motion to* vacate an injunction because granted by the Judge before the summons in the action was served. Sec. 220 of the Code of Procedure, under which the case arose, provided that ‘the injunction may be granted at the time of commencing the action or at any time afterwards before judgment.’ It was held that an injunction granted before the summons was served was regular and could not be set aside on motion.” It is often important to the administration of justice that a judge should have the right h> issue an injunction order before actual service of the summons, as a prior service of the summons, looking ho injunction, might hasten or aggravate the vexy evil designed to be pi'evented. It may be said this may be avoided in lax'ge measure by merely lodging the summons with an officer for sexwice, as provided in sec. 120, Code Px'ocedure, and then immediately making application for injunction, as is the practice by some. In the first place, it is doubtful if sec. 120 in this x'egard applies except in cases where the statute of limitations is involved. Besides, a party is not compelled to1 have process served by the sheriff or other officer, but may desire to exercise his right to' have sexwice made by some other person not a party to1 the action, as was in fact done in this case. The practice adopted in this case was not improper. *261 But even if we are wrong in this, the worst that could be said as to procuring an order of injunction before the service of the summons or before lodging the summons for service, is that it is an irregularity. -Such irregularity would not make the order so procured void after service with the summons upon the defendant. Instead of moving to correct such irregularity during the pendency of the hearing of the motion for injunction, defendant answered to the merits and made return to the rule, resulting in the order of June 1, without having raised any such objection, and thereby waived the same. . In so far as it is sought to sustain the order of Judge Gary on the ground that the facts stated in the complaint did not present a case for injunction, as applied in Ex parte Jeter, 64 S. C., 406, it is sufficient to say that such question is concluded' against appellant by the decision of this 'Court in the case of Jordan v. Wilson, recently filed, in which this Court sustained an order of Judge Purdy declining to set aside this same order of June 1, 1903. Judge Purdy having jurisdiction to grant the order of June 1, Judge Gary was without authority to dissolve the same. The order of Judge Gary appealed in this case is, therefore, reversed and set aside.