Cohen v. Gray

Department No. 2, by the Court (from the Bench): The appellants were Trustees of the town of Alameda, and were attempting in their official capacity to open a public street through the lands of respondent, when he .obtained an order for them to show cause why an injunction should not issue to restrain them from further proceeding in the matter, and that in the meantime they be restrained from proceeding therein. Upon the hearing of said order to show cause, the Court made an order that a writ of injunction issue according to the prayer of the complaint. No writ ever did issue, but the defendants appealed to this Court from the order allowing the injunction. The respondent now moves to dismiss the appeal, on the grounds that the term for which the defendants held office has expired, and that the act of the Legislature under which they were proceeding to do the act complained of has been repealed.

We do not think that these constitute sufficient grounds for dismissing an appeal. It may be that appellants will be entitled to costs, if it is finally determined that the order was improperly made, which they may not be able to recover if the appeal should be dismissed.

Motion denied.