State ex rel. Becker v. Judge of the Sixth District Court

The opinion of the court was delivered by White, J. The relator asks for writs of prohibition and mandamus direct the allowance of a suspensive appeal from an order refusing to issue a preliminary injunction. He presented a petition asking a preliminary injunction. The Court not feeling satisfied, from the face of the papers, that the prayer should be granted, ordered the defendant to show cause, on a day fixed, why the injunction as prayed for should not issue, and directed that pending the hearing proceedings be stayed. After appearance by the counsel and an argument as to the right to the preliminary writ, the court refused to grant it. The plaintiff applied for a suspensive appeal, and on its being refused our jurisdiction was invoked. The judge of the court below, in his answer says, he expressed his willingness to grant a devolutive appeal, but seems to have refused an appeal suspensive in its nature because of a belief that an appeal of such a character would have continued in force the order by him temporarily granted staying proceedings until the hearing, as to whether or not he would grant the prayed-for injunction; thus practically granting an injunction without bond, for no bond had been required for the temporary order. In other words, he refused the suspensive .appeal, because of what he conceived to be a possible wrong to result from its allowance. In this we think he erred. The appeal was asked from the refusal to grant the preliminary inj unction. Whether the appeal when granted would continue in force a temporary order issued under the circumstances disclosed.by the record, is a matter upon which we need express no opinion, as the question before us is simply as to the right of appeal from an order refusing an injunction, and not what such an appeal may suspend, if allowed. That an appeal lies from a refusal to grant a preliminary injunction, is no longer an open question. State ex rel. Tricou vs. Lewis, 7 M. 459; 28 A. 902; 29 A. 795. The right to appeal, being therefore undoubted, its nature did not depend on the discretion of the lower judge, but on the appeal having been applied for within the time and in compliance with the forms prescribed by law. The writs of mandamus and prohibition .are made peremptory.