Noyes-Holland Logging Co. v. Pacific Live Stock & Lumber Co.

Opinion Per Curiam. 1. The leading case on this subject is Livesley v. Krebs Hop Co., 57 Or. 352 (97 Pac. 718). It was there decided that although injunction was not within the original jurisdiction of this court, yet in order to preserve its jurisdiction over the subject of the suit on appeal it would issue a temporary restraining order pendente lite. In that suit the plaintiffs sought to prevent the Krebs Hop Company from enforcing a judgment against them on the ground that the company was insolvent and that, having a good reason for resisting the judgment on appeal, the remedy would be entirely lost to the plaintiff on account of the insolvency of the concern claiming the judgment. Manifestly, under such circumstances, the court would find its efforts futile to render complete justice in the ease on account of the inability of the company to restore what it might have unjustly collected. In Kellaher v. Portland, 57 Or. 575 (110 Pac. 492), Mr. Justice Eakin said: “This court cannot by injunction protect property rights, or enjoin acts that might result in damage to a litigant. This is the province of the Circuit Court, and this court can only review its action on appeal.” To a like effect is Brice v. Younger, 63 Or. 4 (123 Pac. 905). In this case there is no suggestion of the insolvency of either party or that the estate of either of them in [389] the land will be irretrievably clouded or destroyed unless the injunction’be continued to the end of the litigation. As said in Brice v. Younger, supra, the plaintiff in ejectment would proceed at his peril while the cross-bill remains open for the consideration of this court. If the proceeding in chancery is well founded the court can exercise its equitable powers in restoring the defendant in ejectment to its former situation at the expense of opposing parties. There is no pretense that the equitable authority of the court will be paralyzed if occasion should arise for its use. 2. All the cases hold that injunction in such instances rests in the sound discretion of the court. The temporary restraining order having been granted without notice to the opposing parties, it is of course subject to dissolution on a proper hearing and the question of whether or not the justice who granted it abused his discretion is not here involved. It not being apparent to the court that the rights of either party will be prejudiced beyond repair by withholding this injunction, an order will be entered dissolving the temporary restraining order so that the action in ejectment may regularly proceed subject of course to the final disposition of the cross-bill. Injunction Dissolved.