San Diego Water Co. v. Pac. Coast S.S. Co.

Temple, C.— This is an action upon an undertaking alleged to have been given in consideration of an injunction in an action by the steamship company against the plaintiff, and upon which the individual defendants were sureties.

It is denied that any injunction was ever issued in the suit alluded to, and the finding of the court sustains the denial.

It appears, however, in the statement that an action was brought to obtain an injunction, and that before the complaint was filed the plaintiff obtained an order to show cause why an injunction pendente lite should not be issued. This order contained no restraining clause, but did require the plaintiff to give a bond to the defendant in the sum of five hundred dollars.

In pursuance of this order the undertaking sued on was given, and recites that the plaintiff is about to com[218]menee an action and to apply for an injunction “ as in the complaint filed in the .said action is more particularly set forth and described.”

The order was made November 10th, and the undertaking approved on the same day. The next day another order to show cause was made, returnable at the same time that the first order was made returnable. This order contained a clause restraining the defendant, “ pending this order to show cause and until the further order of this court.” There was no appearance by either party at the time the order to show cause was returnable, nor was the motion for an injunction continued or kept alive in any mode. The restraining order, therefore, which is only authorized to be made pending the motion, fell with the motion. (Code Civ. Proc., sec. 530; Hicks v. Michael, 15 Cal. 107.)

In the last case Judge Field says that an order dissolving such a restraining order is not necessary. It ends naturally with the motion.

To that effect also is the reasoning in Webber v. Wilcox, 45 Cal. 302, and Lamberts. Haskell, 80 Cal. 611, although this precise question was not involved in these cases.

If the phrase “and until the further order of this court ” could have the effect to prolong the restraining order beyond the pendency of the motion for an injunction, then it would convert the order into a preliminary injunction, which could not be operative until a bond was given. But this order required no bond, and by making the order to show cause the court adjudged that a preliminary injunction should not be made until the defendant had been heard.