German Savings & Loan Society v. Aldrich

California Court of Appeal Mar 18, 1907 No. Civ. No. 328.Published

Before: Taggart

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Holding. The court held that under the 1895 amendment to section 527 of the Code of Civil Procedure, a preliminary injunction granted before trial expires by operation of law after twelve months if the case has not been set for trial and the parties have not consented to an extension. Consequently, the court has the authority to formally declare such an injunction inoperative upon application.

Issues

Whether the 1895 amendment to section 527 of the Code of Civil Procedure applies to preliminary injunctions granted after a hearing as well as those granted ex parte.
Whether a court has the power to declare a preliminary injunction inoperative after the twelve-month statutory period has expired without the case being set for trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The period of twelve months having expired, and the case being neither tried nor set for trial on its merits, the injunction became inoperative, and, upon application to the court, the parties beneficially interested were entitled to have the court so declare.”

“There is nothing in the language of the amendment to justify any distinction between injunctions granted ex parte and those granted after a hearing of all the parties.”

Synopsis

The facts are stated in the opinion of the court.

TAGGART, J.

This is an appeal from an order dissolving a preliminary injunction.

The injunction was granted upon notice and service of an order to show cause regularly made. The order dissolving the injunction was also made upon motions separately filed by each of the defendants after hearing duly noticed.

The sole ground of each of the motions was the delay in bringing on the cause for trial on its merits. The notices of motion specify, and the affidavits in support of them aver, that the injunction was granted prior to the trial of said actionthat the same has continued in force for a longer period than twelve months from the time it was granted; that the parties to said action have not consented that the same shall continue in force for a longer period than “six months,” in one case, and in the other, “any period of time, or at all”; and that the said action has not been set for trial on its merits. Both notices and affidavits follow the language of the amendment of section 527 of the Code of Civil Procedure made in 1895.

Appellant contends that the preliminary injunction having been granted after hearing, the court was without power to dissolve the same; that the matter was

res adjudicata;

that the only remedy was by appeal from the order granting the injunction; that, assuming the court had the power to dissolve, this could be exercised only upon new matter or evidence arising since the granting of the injunction; and that the amendment of section 527, Code of Civil Procedure, must be limited in its application to a preliminary injunction granted

ex parte,

where no motion either to dissolve or modify such injunction has been made or denied.

The determination of these contentions depends solely upon a construction of the amendment of section 527, and so far as we are aware, it has not been construed by any appellate court. A cardinal rule of interpretation is that a statute free from ambiguity and uncertainty needs no interpretation. This must be so, for all interpretation and construction is for the purpose of ascertaining the legislative will. When this is clear, interpretation is not allowable.

(Davis

Hart,

123 Cal. 387, [55 Pac. 1060]:)

German Savings & Loan Society v. Aldrich

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Synopsis

TAGGART, J.

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