Heinlen v. Cross

Ross, J. The present petitioner is plaintiff in a certain action which was brought in the Superior Court of Tulare County against the Fresno Canal and Irrigation Company for the recovery of damages, and an injunction perpetually restraining the defendant in the action from diverting, or in any manner interfering with certain waters. After trial final judgment was entered in the action in favor of the plaintiff and against the defendant for eleven thousand dollars damages, and perpetually enjoining the defendant, its agents, employees, etc., from diverting or in any manner interfering with the waters, and for costs of suit. From that judgment an appeal ivas taken by the defendant to this court, the undertaking on appeal being in the sum of three hundred dollars for costs, besides double the amount of the money judgment.

An agent of the defendant having continued the diversion of the waters notwithstanding the judgment, application in proper form was made on behalf of the plaintiff to the Superior Court for an order on the said agent to show cause at a certain time and place why he should not he punished for contempt of court in disobeying the injunction awarded by the judgment. At the time and place appointed for the purpose, the agent of the [45]defendant in the action appeared with his counsel and stated to the court that since the entry of the judgment the defendant had continued to divert the waters by the same means and to the same extent as before, but by no other means and to no greater "extent, which statement being assented to by the plaintiff, the court dismissed the proceedings and discharged the agent on the ground that the process of contempt was a proceeding in the action, and that by the appeal all proceedings under the judgment had been stayed.

Had the action of the court below been in the exercise of a judicial discretion, of course mandamus would not lie to compel the court to proceed in the matter. But it is perfectly manifest that the action of the court in dismissing the proceeding was based on a supposed want of power occasioned by the appeal and the incidental stay of proceedings wrought by the execution of the undertaking on appeal. If the injunction was not suspended by virtue of the appeal, it was thé duty of the court to have inquired into the facts, and to have brought its judgment to bear upon them. (Merced Mining Company v. Fremont, 7 Cal. 130.) Did the appeal suspend the injunction?

It was claimed for the respondent that it did by virtue of § 949 of the Code of Civil Procedure. But that section, so far as this question is concerned, is substantially the same as § 356 of Parker’s Cal. Prac. Act, which was in force Avhen the case of the Merced Mining Company v. Fremont, supra, Avas decided, and substantially the same as § 342 of the Hbav York Code. (Wait’s N. Y. Code, § 342. In Merced Mining Co. v. Fremont, this court held that the execution of the undertaking contemplated by § 356, of the former Practice Act, did not have the effect of suspending the injunction—the court saying : “ When a party is restrained by injunction, he is not injured in contemplation of laAV, as he is already secured by the undertaking. If, on the contrary, an appeal, Avith an undertaking of three hundred dollars, Avould have the effect of staying the injunction itself, then the plaintiff Avould have no remedy, and the Avrit be idle. It Avould entirely destroy the usefulness of this writ. A stay of proceedings, from its nature, only operates upon orders or judgments commanding some act to be done, and does not reach a case of injunction.”