Alexander v. Woods

Smith, C. J., delivered the opinion of the court. Appellees filed their bill in the court below praying, among other things, for a mandatory injunction, the nature of which is immaterial on this motion, and that on final hearing such injunction be made perpetual. The chancellor, when applied to therefor, instead of granting the temporary injunction ex parte, very properly, there being no necessity for immediate action, directed that the defendants be notified to appear before him on a day named to show cause why the injunction should not be granted. On the day named, the defendants not having-then filed their answer to the bill, the attorneys óf all parties interested appeared before the chancellor, who granted an injunction after hearing argument relative to whether or not the bill on its face presented a case warranting him in so doing. Thereupon defendants prayed an appeal to this court, to settle, the principles' of the case, and, upon the chancellor’s refusing to grant such an appeal, applied to the writer hereof under the provisions of section 4908 of the Code, by whom the appeal was granted. An appeal will not lie from an order of a chancellor or judge directing the issuance of a temporary injunction. The only way in which such an appeal can be obtained before final decree is by filing a motion to dissolve and appealing from the decree rendered thereon in the manner provided by section 35 of the Code. Such an order [876] may be, and usually is, granted ex parte and before the filing of the bill. While we desire to commend the practice of not granting injunctions ex parte, except “in cases of greatest emergency” (see rule 31 of'this court), still the statute seems to contemplate that they shall be granted ex parte, and does not provide for notice to defendants. In granting this appeal the writer acted upon the erroneous assumption that what occurred before the chancellor was the equivalent of the granting of an injunction ex parte, followed by the filing and overruling of a motion to dissolve. Motion sustained and appeal dismissed.