Biasca v. Superior Court

THE COURT.

This application for a writ of prohibition presents for decision the single question of the jurisdiction of the superior court to issue an interim restraining order without requiring the undertaking mentioned in section 529 of the Code of Civil Procedure. A complaint was filed in the respondent court which stated a cause of action in favor of the plaintiff therein for an injunction against the defendant therein. Upon application for a temporary injunction

pendente lite

the respondent court issued an order to show cause why an injunction should not issue as prayed for, which was made returnable seven days after the date of its issuance, and which provided further that “pending the hearing of said motion for a preliminary injunction and until the determination of said motion” the defendants were restrained from doing the things therein specified. No undertaking was required or given in connection with the issuance of said interim restraining order. Contempt proceedings having been initiated in the respondent court, based

[367]

upon an alleged violation of the interim restraining order, a writ of prohibition is sought to restrain the respondent court from proceeding with the same, upon the ground that in the absence of such an undertaking the restraining order was void. In

San Diego W. Co.

v.

Steamship Co.,

101 Cal. 216 [35 Pac. 651], this court pointed out the distinction between a preliminary injunction on the one hand and an interim restraining order in connection with an order to show cause and expiring with it on the other hand, and held definitely that an undertaking is required in connection with the former but not with the latter. That decision has never been overruled or departed from by this court so far as we are advised. It was cited and distinguished in

Neumann

v.

Moretti,

146 Cal. 31 [79 Pac. 512], and it was there pointed out that “the temporary restraining order referred to in the statute is an order which applies to the time intervening between an application for an injunction and the day fixed in the order to show cause. Under section 528, after the defendant has answered, an injunction cannot be allowed except upon an order to show cause. Under section 530, if the court or judge deems it proper that the defendant should be heard an order may be made requiring cause to be shown at a specified time and place.