Sullivan v. Triunfo Gold & Silver Mining Co.

By the Court, Sawyer, J.: The respondent moves to dismiss the appeal, on the ground that no appeal lies from an ex parte order made by the Judge at Chambers granting an injunction. Section one hundred eleven of the Practice Act authorizes a Judge at Chambers or a County Judge to grant the order, “ and when made, it may be enforced as the order of the Court.” Thus, although made by the Judge, it virtually becomes the act of the Court. The order is an order granting an injunction, when made ex [390]parte as well as when made on notice, and may be enforced in the same way. Section three hundred forty-seven provides, that an appeal may be taken “ from an order granting or dissolving an injunction.” The language is explicit, and clearly covers every case of an order granting an injunction. It does not say from an order granting an injunction made on notice, or upon order to show cause. ¡Nothing is said about an order adjudicated after a contest, or after both sides have been heard. The appeal is from “ an order granting an injunction,” in the broadest terms, without limit or qualification. There is nothing in any other portion of the statute, so far as we have been able to discover, that in any way limits the scope of this express provision of the statute. It is true, that under section three hundred thirty-four, where an ex parte order has been made, the Judge who made the order is authorized to vacate or modify it ex parte. And under section one hundred eighteen, the party restrained by an injunction granted without notice may, upon notice, apply to the Judge who granted it, or to the Court, to dissolve or modify it. These remedies are in nowise inconsistent with the right to appeal without any such previous application. The remedy may be only cumulative and concurrent. In Borland v. Thornton, 12 Cal. 448, the general provision of section three hundred thirty-four, that “ an order made, out of Court, without notice to the adverse party may be vacated or modified without notice,” was held to be applicable to ex parte orders granting injunctions as well as to other orders. Yet there was a special provision relating to the particular subject of injunctions in section one hundred eighteen, that, if “ an injunction be granted without notice, the defendant, at any time before the trial, may apply upon reasonable notice to the Judge * * or the Court * * to dissolve or modify the same.” The provision of section one hundred eighteen, especially applicable to injunctions, was held not to be inconsistent with, or a limitation upon, the more general language of section three hundred thirty-four. The Court decided that either mode might be pur[391]