Neumann v. Moretti

COOPER, C.

This action was brought to secure the cancellation of a certain note and mortgage executed by plaintiff Paul Neumann to defendant. The facts are fully stated in the appeal from an order denying a new trial this day decided (S. F. No. 3960,

ante.

p. 25.)

After the complaint was filed and summons issued, before answer or appearance by defendant, the court, on the

ex parte

application of plaintiff, granted a restraining order, commanding the defendant, his agents and servants, until further order of the court, to absolutely refrain from assigning or transferring or disposing of the promissory note and mortgage. The defendant afterward made a motion to dissolve and set aside the said order upon the ground among others, that the court did not require a written undertaking on the part of plaintiffs as required by the statute, and that no undertaking was given or required at the time of making said order or at any other time. On the eighth day of August, 1903, the court made an order refusing to dissolve the restraining order. This appeal is from the said last-named order.

The restraining order was an injunction. It required the defendant to refrain from a particular act. (Code Civ. Proc., sec. 525.)

An appeal lies from an order refusing to dissolve an injunction. (Code Civ. Proc., sec. 963, subd. 2;

Schmidt

v.

Bitzer,

(Cal.) 71 Pac. 563.)

It was admitted that no undertaking was given or required by the judge. It was the duty of the court or judge to require a written undertaking to the effect that plaintiff would pay to the party enjoined such damages as such party might sustain by reason of the injunction (Code Civ. Proc., sec. 529); and the injunction will be dissolved; in case of such failure to give the undertaking.

(McCracken

v.

Harris,

54 Cal. 81;

Alaska Improvement Co.

v.