CONREY, P. J., Concurring.
I concurin the judgment. The decisions relied upon by petitioner are not, in my opinion, sufficient to sustain his position. I will here refer to the cases cited by him, except that I omit those which I think are not at all in touch with the question here to be decided. In
Cohen
v. Gray, 70 Cal. 85 [11 Pac. 508, 509], the court allowed a restraining • order, together with an order to show cause why an injunction should not be gr'anted, and thereafter granted an injunction
pendente lite.
On appeal from the second injunction order the Supreme Court remarked that “upon the entry of that order, the restraining order spent its force”. It is clear enough that the court was not attempting to fix the precise moment when the restraining order would be succeeded by the injunction
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pendente lite,
for that was not a matter of question in the ease. The same observation applies to
Curtiss
v.
Bachman,
110 Cal. 433, 439 [52 Am. St. Rep. 111, 42 Pac. 910, 912], where it was said that “the restraining order made at the commencement of the action would expire by its own terms at the hearing of this motion”. In
Maier
v.
Luce,
61 Cal. App. 552 [215 Pac. 399, 400], it was shown that the superior court, on receiving an application for an injunction, issued an order to show cause,. together with a restraining order. The restraining order was supported by a duly executed undertaking as required by the court. “On the hearing of the order to show cause therein the court held that the defendants had no right pending the hearing of the case to use cabs painted a yellow color. The cause was thereupon set for hearing two days later. No new bond was required by the court, nor was one ever given upon the temporary injunction, and on the subsequent hearing of the cause the court granted a motion for nonsuit.” Later, the first judge having become disqualified, a motion for new trial was heard by another judge and was granted, with a provision in the order that 11 the said temporary injunction is hereby continued in full force and effect pending the further order of this court”. Thereafter, the defendants were cited for contempt in that they violated the terms of the said temporary injunction. While this contempt proceeding was pending, the judge who had issued the temporary injunction caused to be entered a
nunc pro tune
order correcting the minutes of the order made by him, so that the minutes as corrected showed that in addition to restraining the defendants from the use of yellow cabs, the bond given upon the temporary restraining order was continued in full force and effect as a bond upon the temporary injunction. Upon an application to this court for a writ of prohibition it was held that the court was without jurisdiction to proceed upon the contempt charge. This court there decided that since the corrected minutes were not in the record at the time of the alleged act of contempt the
nunc pro tunc
order could not be made the basis of a contempt proceeding; for the contents of that order had not been brought to the ‘personal attention of the person thereby affected. No written undertaking having been required or given in connection with the temporary injunction which the court ordered,
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the order was void because it did not comply with the requirements of the statute. I do not find in that decision any answer to the question now before us.
In the absence of any direct authority other than the statute itself (especially sec. 527, Code Civ. Proc.), we must treat the question as one of first impression. The proceedings on an application for a temporary injunction require a hearing upon notice. But in order that a party applying for such an injunction may be protected during the time required for proceedings under the notice and “order to show cause”, it is provided that upon a proper showing-of sufficient grounds therefor, the complaining party shall have the benefit of a temporary restraining order. (Code Civ. Proc., sec. 527.) This proceeding, as outlined in the statute, plainly contemplates that (with exceptions not pertinent here) the restraining order shall remain in force until the temporary injunction, if granted, has become effective against the party enjoined. This thought has been aptly expressed by describing the process as one whereby “said temporary restraining order has fulfilled its function and been supplanted by the preliminary injunction”.
(City of Los Angeles
v.
Superior Court,
196 Cal. 445, 449 [238 Pac. 670, 672].) This process by implication allows a reasonable time for filing the required undertaking and giving the necessary notice. As applied to the case at bar, before the order granting the temporary injunction could become an effective restraint upon the parties enjoined, ■ and thereby “supplant” the restraining order, it was necessary that the required bond be approved and filed and that the order of injunction, or a sufficient notice thereof, be served upon the parties entitled to such notice. In the situation shown by the record here, I think that the continuous force and effect of the restraining order was not dissolved until the moment when the defendants became subject to the requirements of the temporary injunction. To hold otherwise would expose the law itself to a contempt which the statutory procedure was intended to prevent.