World Package, Express & Messenger Co. v. Trades Assembly

PER CURIAM. — The condition of this case, as presented by the recitals of the record quoted, is anomalous. The appellant obtained from the court no ruling upon the admissibility of evidence under the allegations of the complaint. If such a ruling had been obtained, and the court had held the pleading bad, an amendment framed to meet the views of the court could have been filed, and thus the order to show cause and the restraining order would have been preserved in force unt-il a, hearing was had upon the evidence. This course is always proper, upon a motion to dissolve an injunction, if the facts contained in the amendment existed at the time the original complaint was filed (Pfister v. Wade, 59 Cal. 273; Barber v. Reynolds, 33 Cal. 497; Shipman v. Superior Court [Cal.] 12 Pac. 787); and the rule'applies as well to the situation presented by the record in the present case. Either this course should have been pursued, or the plaintiff should have offered its proof, and then stood upon the ruling by which it was excluded. The plaintiff would then have been in position to assign error upon the action of the District Court, and properly to present it for review on appeal to this court. We think the court was wrong in the opinion that the complaint does not state a cause of action; but this expression of opinion, though it may explain the plaintiff’s subsequent action, was not a decision of any question presented for determination. No evidence was offered and excluded. No objection was made to the withdrawal of the affidavits filed in support of the denials made by the answer. The question as to whether an injunction should issue was without objection submitted to the court upon the complaint and answer. As the answer met and [352] directly denied all the material allegations of the complaint, the action of the court thereon cannot be disturbed. Though in form the order vacated the restraining order, and discharged the order to show cause, it was in legal effect a refusal to issue the injunction upon the showing then made. In this there was no abuse of discretion. But, conceding that the opinion expressed by the court was in effect a ruling excluding plaintiff’s evidence on the ground that the complaint was bad, the plaintiff is in no position to complain. The record fails to disclose any exception to the ruling taken at the time. The plaintiff having thus submitted without complaint to the court’s action, thereby waived its right to have this Court review it and correct the error thus committed. The order appealed from is affirmed. Affirmed.