Kemper v. Campbell

The opinion of the court was delivered by HortoN, C. J.: A temporary injunction was granted in this case without notice by the probate judge, in the absence of the district judge. Upon notice, and after the hearing of a motion therefor, the district judge dissolved the temporary injunction. It is contended that the notice of the hearing before the district judge was not specific or sufficient. The notice stated that “The application for dissolution would be made upon the petition and the affidavits on which the injunction was granted, and such other affidavits as the defendants might deem proper to use in support thereof.” Upon dissolving the temporary injunction, the district judge ruled that the petition did not state a cause of action. Under these circumstances, the notice was sufficiently specific. The notice was served on the 10th day of September, 1889, and stated the motion would be beard on the next day, September 11, but upon the 11th, as the plaintiff objected to taking up the motion at that time, the hearing thereof was continued to September 16. Ample time was thereby given o.f the hearing of the motion. It appears from the petition that the city of Horton is a city of the second class, and cities of that class have the power to alter the grade or change the level of the land on which the streets are laid out. The petition treats the acts of the mayor and street commissioner as if they were acting for the city of Horton. It is true that it alleges that they are- excavating and changing the grade of the streets “ without authority of law,” and that the mayor was “unlawfully” procuring and suffering the excavation to be done, but these words add nothing to the peti [533] tion. (M. E. Church v. City of Wyandotte, 31 Kas. 721.) Upon the authority of that case, the petition does not state sufficient facts to constitute a cause of action. Again, “An injunction in limine is not a matter of strict right. It may sometimes be properly refused upon the same facts which would entitle the party of right to a perpetual injunction on final hearing.” (Akin v. Davis, 14 Kas. 143; Olmstead v. Koester, 14 id. 463.) The order of the district court will be affirmed. All the Justices concurring.