Richard v. Baldwin Lumber Co.

On Motion to Put Case on Summary Docket. PROVO STY, J. This suit is to annul a contract by which plaintiff granted a servitude of way over his land for a skidder railroad. Plaintiff asks that the contract be annulled, and that the defendant be enjoined from operating the skidder railroad. No preliminary injunction was asked, but the prayer is simply tha^ judgment be rendered enjoining the defendant. This prayer was denied, and no injunction has been granted. Act 17, p. 36, of 1876, provides that the following appeals shall be placed upon the summary docket: Those “from judgments against sureties upon judicial bonds and injunction cases.” Plaintiff asks that the present case be put upon the summary docket as being an injunction case. [1,2] Said provision apparently has reference only to judgments against sureties on injunction bonds. It does not say from judgments in injunction cases. And it being in derogation of common right (for all cases should be treated alike and preference shown [831] to none), it has to be strictly construed. But if said provision can be said to refer to injunction cases, it must be held to mean those cases where property has been tied up by an injunction. Except where a writ of injunction has actually issued we can think of no reason why preference should be given to an injunction case. If in this case judgment had gone against defendant, and the party asking that the case be put on the preference docket were the defendant and not the plaintiff, there might be some show of reason for calling the case an injunction case within the spirit of the said provision when, construed as having reference to injunction cases; but judgment has gone against plaintiff and the injunction has been refused, so that there is in fact no injunction in the case. The order for the case to be placed on the summary docket must therefore be rescinded, and it is so ordered.