Walberg v. Underwood

SLOANE, J.

Appeal from an order dissolving a temporary injunction. The plaintiff, it is claimed, without giving notice as required by section 527 of the Code of Civil Procedure, obtained an injunction

pendente lite

staying the execution of a judgment in favor of defendant. The injunction was granted by the judge in chambers. The record discloses that the defendant Underwood was represented by attorney at the hearing of the application. The order appealed from, dissolving this injunction, was granted without a hearing on the merits, on the alleged ground that the original order granting 'the injunction was made without notice.

Two points of law are involved in this appeal: First: Was the appearance made by defendant’s attorney such as to constitute a waiver of the statutory notice? Second: Had the court jurisdiction to dissolve the temporary injunction without a hearing on the merits? It appears from the bill of exceptions that Mr. Kelly, attorney for plaintiff and appellant here, appeared in court before Honorable Howard A. Peairs, one of the judges of the superior court for the county of Kern, where the matter was pending, and asked for this temporary injunction. Mr. Fitzgerald, an attorney, and who afterward appears as attorney of record for the defendant and respondent, was in court at the time, and stated that he desired to be heard in opposition to the application. The hearing was thereupon postponed to a later hour, at which time plaintiff’s attorney and Mr. Fitzgerald, who was present on behalf of the defendant and respondent Underwood, appeared in chambers before Judge Peairs. Mr. Brown, another defendant in the action in which the injunction was sought, was also present in person. The application for an injunction was presented on the verified complaint in the action, and, after discussion, and objection to granting the writ on the part of Mr. Fitzgerald, the exact nature of which is somewhat in dispute, the temporary injunction was granted, and contains the following recital: “On reading the said complaint in said action, duly verified by the oath of Carl A. Walberg, and it satisfactorily appearing to me therefrom that

[750]

it is a proper ease for an injunction, and that sufficient grounds exist therefor, and the necessary undertaking having been given; It is therefore ordered,” etc. The record pertaining to the issuance of the injunction contains no recital of notice of the hearing or of appearance by the defendant. It is also conceded that no previous notice of the proposed application for this injunction had been served on the opposite parties, and that Mr. Fitzgerald was present by virtue of informatiofi that the matter was to be presented, which he had received indirectly from some outside source. The application to dissolve this temporary order was heard in court, after due notice, and on affidavits, and the oral testimony of Judge Peairs, before Honorable Milton T. Farmer, another judge of the superior court for Kern County.