Elliott v. Osborne

By the Court,

Bennett, J. The papers in this cause were destroyed by the late fire, and we must rely upon our recollection of the tacts, as presented on the argument. They were in substance as follows : A judgment was recovered against the defendants in the district court, and a motion for a new trial was made in the cause some thirty days after the rendition of the judgment. The court denied the motion, and from the order of the court refusing to grant a new trial this appeal is taken.

It is provided by section 252 of the Practice Act, that a party who feels himself aggrieved by a judgment against him, may, within four judicial days after such judgment has been rendered, pray for a new trial, which must be granted, if there be good ground for the same. According to this section a motion for a new trial must be made within four days after judg[397]ment; the motion in this case was not made within that time, and was therefore properly refused for that reason, unless there he circumstances which take the case out of the general rule.

It is claimed by the appellants that such circumstances did exist. An order for an injunction was made in another suit, between other parties, for the purpose of en joining the proceedings of the plaintiff in the present suit. This order of injunction was not served before or at the time of the trial, nor until three days after the judgment became final; but before the judgment became final, one of the defendants’ attorneys informed the plaintiff’s attorney, that such order had been made. But it appears that, at the time such information was given, no written undertaking had been given on the part of the plaintiff* in the injunction suit; and we apprehend that an order for an injunction must be deemed inoperative until such undertaking be given ; otherwise the party enjoined would have no security for any damages which he might sustain by reason of the injunction. [Sec. 120 of Practice Act.) But we think that giving information of an order of injunction, is insufficient to affect the party to whom it is given. If a party be in court at the time the order is made, and thus has personal knowledge of the order, the case might be different. There he would probably he bound by the order, even without service thereof upon him. But we do not think that the information given to the plaintiff’s attorney in this case, can he considered as restraining either him or his client from the prosecution of the suit. The injunction order, therefore, must be deemed as of no effect until the service thereof, which was not until three days after the rendering of final judgment.