Brennan v. Gaston

Action for damages for trespass alleged to have been committed by defendants upon certain quartz mining claims; and also for a perpetual injunction against future trespasses, which was granted. Defendants deny all the allegations of the complaint, and set up ownership of certain mining ground. Verdict generally “for defendants,” and judgment in their favor for costs. Defendants ' move to amend the judgment by dissolving the injunction. Motion denied, but the judgment modified so as to permit defendants to work the ground set up in their answer. After the term had expired, defendants appeal from this order refusing to dissolve the injunction, and subsequently, upon defendants giving bond, the Judge, in chambers, made an ex parte order directing plaint-

iffs to yield possession of the ground described in the answer to defendants, which order plaintiffs refused to obey; and then followed an order to show cause why they should not be punished for contempt: Held, that the Court had no power to make the ex parte order for the restitution of possession or the induction of defendants into possession of the premises—as this was in effect to decide the whole controversy in limine, and to execute the judgment by an ex parte order; that the possession by plaintiffs of the premises was property, and could not be disposed of except in due course of law; and that all the subsequent orders—for contempt, etc.—being dependent on this, fall with it.