Steigerwald v. Winans

Lu Grand, C. J., delivered the opinion of this court. This appeal has been brought before the court under the 25th section of the 5th Article of the Code. We do not think the true construction of this section authorises an appeal in a case predicameuted as is this one. That section was intended, with a slight modification, as a codification of the Act of 1832, ch. 197, which authorised an application to the judges of the Court of Appeals, or one of them, when an injunction should have been refused by the county court. Under that Act nothing but the bill and its exhibits were to bo submitted tó the judge of the Court of Appeals. By this section of the Code it is provided, that whenever an injunction shall have been refused by a “judge of a court of equity,” the clerk of the court “shall forthwith transmit the original papers, comprising the bill or petition and exhibits, and the said court’s order of refusal, to the Court of Appeals, and the said court shall hear and determine the appeal,” &c.. &c. [66] The refusal of the court to grant an injunction was not made 0® the presentation of the bill and exhibits, but upon these and the answer of the defendants and proof. Such a proceeding we do not think within the remedy provided by the 25th section of the 5th Article of the Code. The complainant had the right to demand a decision on his bill, and if the judge refused to grant the injunction asked for, to appeal directly to this court; but, as in this case, if he elect to postpone his appeal until proof is taken and the case decided on it, his right of appeal is gone under the section of the Code to which we have referred. Where such postponement and proceedings are had in the case, it must go on to final hearing, before an appeal will lie. The Code, like the Act of 1832, was intended to apply to a class of special cases, and not to all cases in which an injunction is part of the relief sought. Although the word “comprising,” does mot under all circumstances, impty including only the things enumerated, yet, in the connection in which it is employed in the Code, we understand it as being used as determining what are the “original papers,” which are only to be transmitted, and on which the decision of the court is to be given. Under the Act of 1832, a case, in the condition of this one, could not be brought before a judge of the Court of Appeals, and we regard the Code as giving, in lieu of the application to a single judge, an appeal to the court, but only in such case as an application to a judge of the Court of Appeals would be allowed under the Act of 1832. This is the only substantial difference between the provision of the Code and the Act of 1832. This being our view of the matter the appeal must be dismissed. Inasmuch as there were other matters argued at the bar by the respective counsel, of sufficient importance to require of us to say something in regard to them, we do so .briefly. Although the Act of 1835, ch. 380, is no longer in force, we are yet of the opinion that, by consent, as in this ease, proof may be taken before any one agreed upon. Before the passage of the Act of 1835, the practice prevailed in several, if not in all, the judicial districts of this State, of taking tes [67] Hunony to be used at, the hearing in cases of injunction, and We see no good reason why it should not be continued. (Decided March 6th, 1861.) Looking to the public character of the improvement contemplated by the defendants, and the importance of an early settlement of the question whether the complainant b'e entitled to an injunction, we think proper to say, that on the bill, answer and proof, as laid before us, and on which the judge of the circuit court acted, we are of the opinion the injunction ought not to have been granted. The bill made a fit case for injunction, but it was changed by the answer and proof. As other proof may be taken, or an action instituted at law, it is proper we should abstain from the discussion oí the facts and law of the case, as it now stands. Appeal dismissed.