Fremont v. Merced Mining Co. (1858) · DecisionDepot

Fremont v. Merced Mining Co.

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1858Published

Before: Burnett, Terry

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Holding. The court held that a judge has the authority to modify an injunction under the Practice Act, and that a refusal to issue an attachment for contempt is not subject to mandamus when the underlying order has been modified.

Issues

Whether a judge may modify an ex parte injunction order under the Practice Act.
Whether mandamus is the appropriate remedy to compel a judge to issue an attachment for contempt after an injunction has been modified.

Disposition. Application denied.

Quotations verified verbatim against the opinion

“The Judge had a right to modify the order, under the provisions of section three hundred and thirty-four of the Practice Act.”

“If the Judge erred in making the order, the remedy of the plaintiff was by appeal.”

Synopsis

When an injunction, granted on an ex parte application, was modified on motion of defendant, without notice to plaintiff, on defendants’ giving bond: Held, that subsequent acts of defendant, in violation of the original injunction, were not in contempt. The remedy of the plaintiff, if there was error in the order modifying the injunction, is by appeal, but he cannot have a mandamus to compel the issuance of attachment for contempt.

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. Application for mandamus. The plaintiff commenced his action in the District Court of the Thirteenth Judicial District, and upon his ex parte application, an order was made by the Judge granting an injunction restraining the defendant from working certain quartz-veins. After due service of the injunction, the defendant, without notice to the plaintiff, applied for a modification of the order, which was granted by the Judge, upon the filing of a bond by defendant in a sum specified. After the order was made modifying the order granting the injunction, the defendant went on to work the quartz-veins mentioned, and the plaintiff, upon the proper affidavit, made application to the Judge for an attachment for contempt. This application was refused, and the plaintiff now applies to this Court for a mandamus to compel the Judge of the Court below to issue the attachment, and hear the case of the alleged contempt.

The Judge very properly refused the application for the attachment. The order granting the injuction having been modi.fiod, there was no contempt committed. The Judge had a right to modify the order, under the provisions of section three hundred and thirty-four of the Practice Act. 8 How. Pr. R., 440. If the Judge erred in making the order, the remedy of the plaintiff was by appeal. § 347.

Application denied.

Fremont v. Merced Mining Co.

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