Oct. 11, 1862, Decree of dis trial. § 403. [399.] Whenever upon the trial it is determined that the plaintiff is not entitled to the relief claimed or missal before any part thereof, a decree shall be given dismissing the suit, and such decree shall have the effect to bar another suit for the same cause or any part thereof, unless such determination be on account of a failure of proof on the part of the plaintiff, in which case the court may, on motion of such plaintiff, give such decree without prejudice to another suit by the plaintiff for the same cause or any part thereof. Oct. 11, 1862, $400. Titles XII., § 404. [400.] The provisions of title XII., also of title XIII., of chapter II. of this code, from and inclusive of XIII, and XIV. Section 250 [247], to and inclusive of section 253 [250], shall apply to suits. The provisions of title XIV. of such chapter shall apply to controversies which might be the subject of a suit. of chapter II. applicable. Oct. 11, 1862, $ 401. When decree in vacation. § 405. [401.] When upon the submission of a suit the court is unadvised as to what decree ought to be may be given given therein, it may reserve the case for further consideration, and may decide the same and give such decree in vacation by filing the same with the clerk. When a decree is given in a suit, unless otherwise ordered by the court, it shall be entered by the clerk within the day it is given. Sections 260 [257], 261 [258], 263 [260], 264 [261], and 268 [265] of this code shall apply to suits. The provisions of title XVI. of chapter II. of this code shall apply to decrees and the final record or roll thereof. Amending decree. - An applica- some good excuse is shown for the detion for amendment of a decree after lay: Chapman v. Wilbur, 5 Or. 299. seventeen months is too late, unless Oct. 11, 1862, $ 402. 14 Or. 292. 19 Or. 185. TITLE II. OF THE MODE OF ENFORCING A DECREE. § 406. When decree requiring the performance of a particular act equivalent thereto; when order or decree may be enforced by punishment of party. § 407. Chapter III. shall apply to suits so far as applicable. § 406. [402.] A decree requiring a party to make a conveyance, transfer, release, acquittance, or other like 402. Decree requir act within a period therein specified shall, it' such party Oct. 11, 1862, do not comply therewith, be deemed and taken to be equivalent thereto. The court or judge thereof may enforce an order or decree in a suit, other than for the payment of money, by punishing the party refusing or Punishment neglecting to comply therewith, as for a contempt. Punishment of contempt: See chapter 7, title 4, post. ing performdeem thereto. ance of act equiv for refusal to comply with order. $403. Chapter III. § 407. [403.] The provisions of chapter III. of this oct. 11, 1862, code shall apply to the enforcement of decree so far as the nature of the decree may require or admit of it; but applicable to the mode of trial of an issue of fact in a proceeding against a garnishee shall be according to the mode of trial of such issue in a suit. suits. TITLE III. OF INJUNCTION. § 408. Definition of, and how permanent injunction enforced. § 409. Allowance of injunction. § 410. Service of the order allowing the injunction. § 411. When defendant may be restrained during the pendency of the suit. § 412. Allowance of injunction after answer. § 413. Motion to vacate or modify injunction. $ 404. Injunction, and how § 408. [404.] An injunction is an order requiring a oct. 11, 1862, defendant in a suit to refrain from a particular act; it is only allowed as a provisional remedy, and when a decree definition of, is given enjoining a defendant, such decree shall be enforced. effectual and binding on such defendant without other proceeding or process, and may be enforced if necessary as provided in section 406 [402]. Form of injunction. -No particular form is requisite; the substantial thing is an authentic notification to the defendants of the mandate of the judge, which they must then, at their peril, obey: Summers v. Farish, 10 Cal. 353. Disobedience to order. Where a party disobeys or violates an injunction, it is a contempt, and punishable as such: See $ 406 [402]; People v. Placer Co., 27 Cal. 151. But acts of defendant who has had an order modified without notice to plaintiff, in violation of the original injunction, 20 Or. 520. Oct. 11, 1862, $405. Allowance of injunction. § 409. [405.] An injunction may be allowed by the court, or judge thereof, at any time after the commencement of the suit and before decree. Before allowing Undertaking. the same, the court or judge shall require of the plaintiff an undertaking, with one or more sureties, to the effect that he will pay all costs and disbursements that may be decreed to the defendant, and such damages, not exceeding an amount therein specified, as he may sustain by reason of the injunction if the same be wrongful or without sufficient cause. 10 Or. 39. 13 Or. 362. Oct. 11, 1862, 406. Granting injunction at chambers. In California, under a similar section, it was held that an injuction granted ex parte by the judge at chambers becomes the act of the court, and may be enforced in the same way: Sullivan v. Triunfo G. & S. M. Co., 33 Cal. 385. Undertaking. - An order for an injunction must be deemed inoperative until the undertaking is given; otherwise the party enjoined would have no security for damages: Elliott v. Osborne, 1 Cal. 397. And an injunction should never be granted until defendants are secured by proper bonds: Pattison v. Yuba Co., 12 Id. 106. This section requiring a bond applies equally where the injunction is granted ex parte, as well as on an order to show cause: McCracken v. Harris, 54 Id. 81. Responsibility on undertaking. — An action on the undertaking cannot be maintained until the suit in which the injunction issued is disposed of by a final decree or judgment: Clark v. Clayton, 61 Cal. 634, where the action was brought on the bond after the dissolution of the injunction, and prior to the trial of the suit in which it issued; Dougherty v. Dore, 63 Id. 170. The dissolution of an injunction is a technical breach of the injunction bond: Stone v. Carson, 1 Or. 100; and an action on the bond is not prematurely brought where the injunction is dissolved, and a demurrer sustained to the complaint, on the ground of the insufficiency of the complaint, which is not amended, nor anything done in the case, and the action on the bond is instituted twenty-one days after service of notice of the ruling on the demurrer: Bennett v. Pardini, 63 Cal. 154. A judgment dismissing a suit (in which a temporary injunction has been granted) for want of prosecution amounts to a determination by the court that the injunction was improperly granted, and after such judgment, suit lies upon the undertaking; and it seems the grounds of the injunction cannot be inquired into in suit upon an injunction bond: Dowling v. Polack, 18 Id. 625. In an action on an undertaking on injunction, it is no defense that the business which defendants enjoined was a public nuisance: Cunningham v. Breed, 4 Id. 384. A bond, though given to more than one obligee, and using no words expressing a several obligation, creates a liability to the obligees severally. The party beneficially entitled to the fruits of the action may sue: Summers v. Farish, 10 Id. 351; Browner v. Davis, 15 Id. 11; Prader v. Purkett, 13 Id. 588; Lally v. Wise, 28 Id. 542. And the parties cannot maintain a joint action unless their damages are joint: Fowler v. Frisbie, 37 Id. 34. Counsel fees paid to procure the dissolution of the injunction, but not such as are paid for defending the entire case, are recoverable on the bond: Bustament v. Stewart, 55 Cal. 115; Porter v. Hopkins, 63 Id. 53. § 410. [406.] The undertaking and affidavits, if any, Undertaking, upon which the injunction is allowed, shall be filed with the clerk. The order may be served as a summons and returned to the clerk, with the proof of service indorsed Service of order. $406. thereon; except that the service shall be made upon the Oct. 11, 1862, defendant personally. The order may be filed with the Undertaking. appear clerk at once, and shall be deemed to be served upon the defendant from the date of its allowance, if it therefrom that the defendant appeared before the court or judge at the allowance thereof. Service of summons: See §§ 54 [53], ante, et seq. Service of order. $ 407. Injunction dency of suit. 20 Or. 520. § 411. [407.] When it appears by the complaint that Oct. 11, 1862, the defendant is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining during penthe commission or continuance of some act, the commission or continuance of which during the litigation Or. 321. would produce injury to the plaintiff; or when it appears by affidavit that the defendant is doing, or threatens or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights concerning the subject of the suit, and tending to render the decree ineffectual; or when it appears by affidavit that the defendant threatens or is about to remove or dispose of his property, or any part thereof, with intent to delay or defraud his creditors,-an injunction may be allowed to restrain such act, removal, or disposition. Injunction generally.-Right to relief must be clear, and free from all reasonable doubt: Tongue v. Gaston, 10 Or. 338; Agate v. Lobenwein, 4 Daly, 62; Minnig's Appeal, 82 Pa. St. 373; State v. McGlynn, 20 Cal. 233; and the court will take into consideration the nature and extent of the injury which plaintiff will suffer if the order is withheld, and also the consequences to others if the order is granted, and will grant or withhold relief according to the exigencies of the case: Heath v. Gold Exchange, 38 How. Pr. 168; Berkeley v. Smith, 27 Gratt. 892. Where the action grows out of an illegal demand an injunction will not be granted: Pond v. Smith, 4 Conn. 297; Smith v. Lockwood, 13 Barb. 209. The right to relief should appear on the face of the complaint. An amended complaint supersedes the original; but if the cause of action, as it should do, remains the same, an injunction founded on the original complaint remains good; and it is settled settled by the authorities Remedy at law. - Plaintiff is not Oct. 11, 1862, $407. damages, an injunction will not be granted: Wilson v. City Point, 39 Wis. 160; nor will it be granted where relief can be obtained by other ordinary process: Ward v. Kelsey, 14 Abb. Pr. 106; People v. Mattier, 2 Abb. Pr., N. S., 289; or where notice of pendency of the action is as effectual: Stevenson v. Fayerweather, 21 How. Pr. 449. So an injunction will not be granted where one can avoid loss, by his own act; as in the case of a transferee of stock still standing in the name of the transferrer, where such transferee seeks to enjoin the sale of the stock as belonging to the transferrer: Farmers' Nat. Gold Bank v. Wilson, 58 Id. 600. Irreparable injury. The injury must be such as cannot be adequately compensated in damages, or it must be irremediable, or lead to irremediable injury: Portland v. Baker, 12 Or. 356; West Point I. Co. v. Reyment, 45 N. Y. 703; Weber v. Gage, 39 N. H. 182; Middleton v. Franklin, 3 Cal. 241; Waldron v. Marsh, 5 Id. 120; Gregory v. Hay, 3 Id. 334. Where no injury beyond a general averment of breach of contract is alleged, an injunction will be refused: Western U. Tel. Co. v. Philadelphia R. R. Co. Phila. 494. Continued diversion of water is irreparable injury: See Lythe Creek Water Co. v. Perdew, 65 Cal. 477; Johnson v. Superior Court, 65 Id. 567. It is only in equity that future injury can be restrained: Tuolumne Water Co. v. Chapman, 8 Cal. 397; and the diversion of water must be continuing: Coker v. Simpson, 7 Id. 341. In a suit to test the priority of appropriation of water, an injunction to prevent future injury is proper: Marius v. Bicknell, 10 Id. 217. One of two or more owners of a water right may be enjoined from diverting more than of right belongs to him; he will be restrained: Lorenz v. Jacobs, 2 West Coast Rep. 722. One who conducts water into a stream may yet be restrained from diverting any of the water unless he can show that he diverts no more than he turned into it: Wilcox v. Hausche, 64 Cal. 461. An assignee of a lessor of chattels may obtain an injunction to restrain the sheriff from selling them as the original lessor's goods, though in the lessee's possession. The lessee may not care or be able to protect them: Ford v. Rigby, 10 Cal. 449. The mere allegation of irreparable injury is not sufficient; the facts must be shown: Burnett v. Whitesides, 13 Cal. 156; Branch Turnpike Co. v. Yuba Co., 13 Id. 190. Nor will an allega tion amounting to a mere statement of opinion suffice: Hoke v. Perdue, 62 Id. 545. A threatened entry by a water company to make excavations, etc., under proceedings in eminent domain, where the company and the sheriff are insolvent, is sufficient to found an injunction: Bensley v. Mountain L. W. Co., 13 Cal. 312; see also Natoma W. & M. Co. v. Clarkin, 14 Id. 551; Stone v. Com. R. R. Co., 18 Eng. Ch. 122; Agar v. Regents Canal Co., Coop. 77; Bonaparte v. Camden etc. R. R. Co., 1 Bald. 205. And a plaintiff is entitled to an injunction where the injuries are calculated to destroy the entire value of his lands for all useful purposes. W. leased a lot of land, on which he erected a hotel, "The What Cheer House." He then purchased an adjoining lot, upon which he erected a larger building, and occupied both as "The What Cheer House," the principal sign being removed to the one last built. He soon after surrendered the lease, and continued the business under the same name in the building on the lot he had purchased. Defendants, having purchased the first-mentioned lot and building, opened there a hotel under the name of "The Original What Cheer House," painted up in a manner calculated to deceive the public into the supposition that it was the same name. In an action by W. it was held that defendant should be enjoined: Woodward v. Lazar, 21 Cal. 448. A person attempting to erect a wharf in the navigable waters of the bay of San Francisco, under a contract with the harbor commissioners, in front of a private wharf, should be enjoined if the commissioners in letting the contract have not substantially followed the statute giving them authority: Cowell v. Martin, 43 Cal. 605. Where an administrator conspires with others, and institutes proceedings in a probate court, to procure the sale of property upon fraudulent claims allowed by the administrator, a court of equity has jurisdiction to interfere by injunction; but if the proceedings are regular on their face, and the probate court has jurisdiction, the relief granted will be con |