Restraining order for more than twenty days.-An order to stay proceedings, made without notice, by a judge out of court, for a longer time than twenty days, is irregular, and a demurrer to the complaint in the action may be treated as a motion to dismiss. Foard v. Alexander, 64-69.

Remedy by motion in the cause.-While an action is pending, relief should be had by a defendant, aggrieved by any judgment, by applying to the court in which it was rendered for a modification of the same, and for a supersedeas or other stay of proceedings, and not by an injunction. Chambers v. Penland, 78-53; Jones v. Cameron, 81-154.

Relief cannot be allowed upon a new action asking an injunction when could be had by a motion in the original cause. Faison v. McIlwaine, 72-313; Mason v. Miles, 63-564; Jarman v. Saunders, 64–367.

An injunction will not be granted where the same matter is involved in another suit pending between the same parties, in which relief can be had. Grant v. Moore, 88-77. See 594, post.

Another motion for injunction pending.-A pending and undecided motion for an injunction and receiver in one action excludes the interference of the court in another, especially at the instance of one who is competent to become a party to, and receive redress in, the first action. Young v. Rollins, 85-485.

Applicant for an injunction must make full discovery. The court will require the party applying for an injunction to make a full discovery of facts, and use perfect candor in alleging them. Phifer v. Barnhart, 88–333.

Distinction between common and special injunctions. -Distinction between common and special injunctions, under the former practice, drawn, and their application to the provisional remedy shown. Heilig v. Stokes, 63-612.

Injunction will not be granted if there is another remedy.-Under The Code practice, an injunction is still an extraordinary and provisional remedy, and it will not be granted before the plaintiff has exhausted the ordinary remedies, unless the court can plainly see that the plaintiff is about to suffer an irreparable injury. Frink v. Stewart, 94-484.

May issue after summons and before judgment.-The jurisdiction to issue injunctions and restraining orders may be exercised at any time after the commencement of the action and before judgment. Fleming v. Patterson, 99-404.

Action not dismissed because injunction refused.-It is error to dimiss an action, upon refusing an injunction till the hearing. Bradshaw v. Com'rs, 92-278.

Powers of court enlarged. The powers of the court as to injunctions and receivers have been enlarged by The Code. Lumber Co. v. Wallace, 93-22.

Sec. 335. What judge to grant injunctions and restraining orders. 1876-'7, c. 232, s. 1. 1879, c. 63, ss. 1, 3.

The judges of the superior court of this state shall have jurisdiction to grant injunctions and issue restraining orders in all civil actions and proceedings which are authorized by law: Provided, that a judge holding a special term in

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any county may grant an injunction or issue a restraining order, returnable before himself, in any case which he may have jurisdiction to hear and determine, under the commission issued to him, and the same shall be returnable as directed by the judge in the order.

Previous to act of 1876-7.-The practice, under this section, previous to the act of 1876-'7, was, in effect, that any judge of a superior court might issue an injunction order or order of restraint, but only the judge of the district in which the county was located, where the action was triable, could hear a motion to modify or vacate such an order. Mauney v. Com'rs, 71-486.

Under the present act.-Under the act as modified by ch. 65, acts of 1879, a motion for an injunction may be made before the resident judge of the district, or one assigned to the district, or one holding the courts thereof by exchange, at the option of the mover. Corbin v. Berry, 83-27.

It seems that any judge has jurisdiction anywhere in the state to grant a restraining order. State v. Ray, 97–510.

Against receiver.-The superior court of one county will not abate by injunction a nuisance erected by a corporation which is in the hands of a receiver appointed by the superior court of another county. Brown v. Railroad, 83-128.

Sec. 336. Before what judge returnable. 1876-27, c. 232, s. 2. 1879, c. 635, ss. 2,3. 1881, c. 51, s. 1.

All restraining orders and injunctions granted by any of the judges of the superior court, except a judge holding a special term in any county, shall be made returnable before the resident judge of the district or the judge assigned to the district, or holding by exchange the courts of the district where the civil action or special proceeding is depending, within twenty days from the date of order. And if the judge before whom the same is returned shall, from sickness, inability, or from any cause, fail to hear said motion and application, or to continue the same to some other time and place, then it shall be competent for any judge resident in some adjoining district, or the judge assigned to hold the court of some adjoining district, or the judge holding by exchange the court of some adjoining district, to hear and determine the said motion and application, after giving ten days' notice to the parties interested in the application or

motion, upon its being satisfactorily shown to him by affidavit or otherwise that the judge before whom the same was returnable failed to act upon the same or to continue the same to some other time and place. The effect of such removal shall be to continue in force the motion and application theretofore granted, till the same can be heard and determined by the judge having jurisdiction of the same.

Under the acts of 1879 and 1881.-Under the acts of 1879 restraining orders must be made returnable at some place in the district in which the action is pending, and before the resident judge or the judge holding the courts therein. By the act of 1881 the judge of an adjoining district may, in certain cases (specified in above section), hear the application. Galbreath v. Everett, 84-546.

Waiver of irregularity. An irregularity in making a restraining order returnable at a point outside the district where the action is pending, is waived by failure to make the objection in apt time. Ibid.

Resident judge.—Where the judge assigned to hold the courts of a district granted a restraining order, with a rule to show cause, returnable on a day after the close of the circuit, and before the resident judge of the district: Held, not to be erroneous, and that the resident judge thereby acquired jurisdiction of the matter. Stith v. Jones, 101-360.

De facto judge.-Where the governor issues a commission to one of the judges of the superior courts, authorizing him to hold certain terms of the superior courts, and the judge undertakes to discharge the duties required of him, he is, so far as the public and third persons are concerned, a de facto judge so long as he assumes to act in that capacity; and this is so although the commission was issued without authority of law. State v. Lewis, 107-967.

Sec. 337. Parties to application for injunction may by written stipulation, designate a judge to hear the same. 1883, c. 33.

By a stipulation in writing, signed by all the parties to an application for an injunction order, or their attorney, to the effect that the matter may be heard before any judge, to be designated in such stipulation, the judge before whom the restraining order is returnable by law, or who is by law the judge to hear the motion for an injunction order, shall, upon receipt of such stipulations, forward the same and all the papers to the judge designated in the stipulation, whose duty it shall thereupon be to hear and decide the matter, and return all the papers to the court out of which they

Injunction

issued: Provided, that the necessary postage or expressage money be furnished to said judge.

Sec. 338. Injunction, in what cases allowed. C. C. P., s. 199.

(1). Depends upon nature of the action.

(1) When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief of any part thereof consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or,

NOTE. The following amendment was adopted, ch. 401, acts 1885.

In an application for an injunction to enjoin a trespass on land, it shall not be necessary to allege the insolvency of the defendant when the trespass complained of is continuous in its nature, or is the cutting or destruction of timber trees;

Not a matter of discretion.-The granting or refusing an order of injunction is not a mere matter of discretion in the judge, and either party may appeal; so that a second motion for injunction, upon the same grounds, should not be heard. Jones v. Thorne, 80-72.

Second application.-The denial of an application for injunction on account of the want of a material averment, is no obstacle to granting a second similar application sufficient in form and supported by evidence. Halcombe v. Com'rs, 89-346.

Contra, if application is made a second time upon substantially the same averment. Jones v. Thorne, So-72.

Delay. When, as in this case, a variety of remedies was open to plaintiff for many years and he did not pursue any of them, he is chargeable with gross laches, and the courts will not interfere by injunction for his relief. Moore v. Mining Co., 104-534.

Cause of action must be alleged. The plaintiff must allege facts sufficient to sustain his cause of action, before an injunction will be allowed. Moore v. Mining Co., 104-534.

Upon an application for an injunction, it is not sufficient to simply allege that the plaintiff will suffer irreparable damage; he must set out the facts so the court may determine the necessity for its intervention. Lewis v. Lumber Co., 99-11.

Where adequate compensation can be had by action for damages. -A restraining order will not be granted where adequate compensation can be had by an action for damages. Hettrick v. Page, 82-65; Walton v. Mills, 86-280; Lewis v. Lumber Co., 99-11.

Where damage will result from refusal, and none from granting.-Where the granting of an injunction can work harm to neither party, and a refusal to grant it will subject one of the parties to further litigation, costs and trouble, the injunction should be granted till the hearing. McCorkle v. Brem, 76-407.

While the court is slow to pass upon disputed issues upon ex parte affidavits, yet where, in a motion to continue a restraining order to the hearing, it appears that the injury sought to be enjoined, is continuous, and the damage very difficult of ascertainment, or when the damage is irreparable, the court will act upon the proofs, and continue the restraining order, if an apparent case is made out, unless continuing the order to the hearing would work greater injury to the defendant than is reasonably necessary for the protection of the plaintiff. Tobacco Co. v. McElwee, 94-425.

Where no damage can result from a refusal.-An injunction will not be granted where no injury. will result to the plaintiff from refusing. Railroad v. Railroad, 88-79.

Where injunctive relief is the relief itself, and not auxiliary.-When the injunctive relief sought is not merely auxiliary to the principal relief demanded in the action, but is the relief itself, the court will not dissolve the injunction upon a preliminary hearing. Lowe v. Commissioners, 70-532; Marshall v. Commissioners, 89-103.

Against a mere trespass.-The entry on land that a court can enjoin is only an entry under force or color of legal process. It will not enjoin a mere trespass, unless irreparable damage is threatened. German v. Clark, 71-417.

An injunction to restrain the defendant from committing trespasses on land alleged to belong to the plaintiff, will not be granted, when it is apparent from the complaint and affidavits that the trespasses are very trifling, and if continued will not work irreparable injury to the plaintiff. Frink v. Stewart, 94-484.

Against issuing grant.-An injunction will not be granted to restrain the issuance of a grant, upon the ground of irregularity in the entries upon which it is to be based, upon the application of one who has not title himself to the premises, especially where it appears that whatever interests the parties may have, may be, without prejudice, presented and determined in an ordinary action to try the title. Brem v. Houck, 101-627.

Against sewer.Where it appeared by the affidavit of two physicians that a sewer used by the defendant was dangerous to the health of the plaintiffs, it was not error to continue the injunction against its use to the hearing. In such case, it is immaterial that the sewer is also used by others. Evans v. Railroad, 96-45.

Against removal of fixtures.-If a mortgagor who is allowed to retain possession, or if a vendee, under a bond for title is let into possession, makes improvements and erects fixtures, he is not at liberty to remove the same, because, by his own default, he is not able to get the title, and he may be enjoined in an action for foreclosure or specific performance. Moore v. Valentine, 77–188.

Against erection of mills.-Where the rebuilding of a mill and dam would injure the plaintiff's land and the health of his family, but the mill would be a public convenience, an injunction against its erection will not be granted. The plaintiff's remedy is compensation for damages. Daughtry v. Warren, 85-136.