, 1892-06-23

APPEAL
IConoluded from Wednesday.

OOlAAuAN0 AAOAn w SAAACoAcsJ
The temporary order provided for in said
section is not the result of the formal &C
ton of the court with proper jurisdiction
to determine whether or not the defend
ants rights should be interfered with, but
only the exercise of extraordinary power
vested in the court from the necessities of
the case to prevent failure of justice.
Such being the evident intent of the legis-
lature it will not be presumed to have
placed it in the power Of the moving party,
against the will of the court, to keep in
force indefinitely an order which was only
intended to remain in force until regular
action of the court could be had in the
matter. Such intention cannot be pre-
sumed from the simple fact that it has
used words in section 1409 which may be
held to be technically incorrect and even
unnecessary unless such instruction is
given.
Besides, the clause of said section 14O9
above quoted only applies by its terms to
orders or injunctions then in force. There
is nothing in the language used which
shows an intent to revive any order which
had been vacated or set aside before such
final judgment The language construed
by the ordinary rules would only keep in
force that which, at the date of the rendi-
ton of the final judgment, was in full
force. This being so it follows almost of
necessity that it was not intended that re-
here should be covered by said section, AS
we have seen, these orders are to remain
in force only for a short period, and are
then superseded by a temporary injunction,
which ordinarily remains in force during
the pendency of litigation. The fact that
this particular order was in force at the
time final judgement was rendered cannot
change the general rule applicable to
orders of this kind.
For reasons given we think that the re-
latOrs were not entitled to have the order
continued in force, and that the action of
the defendant in refusing their demands
in that regard was not erroneous.
Another question has suggested itself to
the court in the investigation of this case,
but as it is not argued by counsel, and is
not necessary to the determination of the
cause, we shall not here decide it. The
question is as to whether or not such a
hnal judgment has been rendered in this
cause as will sustain an appeal. The peti-
ton shows that the court dismissed the
action without hearing on the merits for
want Of Jurisdiction of the subject matter.
Under these circumstances it may well be
questioned whether the remedy for erro-
neOus action by the court is by appeal or
by mandamus. The prayer of the petition
must be denied. HoYT, ].
We concur: Scott, J Dunbar, J..
l concur in the result reached in the de-
cision in this case, but not upon the
ground upon which the decision is based.
1t seems to me that the language of sec.
1409 is too clear for explanation notwith-
standing the provisions Of sec. 27O. But
under the decision of this court in State ex
rel Shannon VS.. Hunter q Pae. rep. 1916,
the judgment of the superior court in this
case, though in form dismissal of the ac-
ton, was in fact refusal to hear the cause,
and therefore not final judgment which
IS appealable. Therefore no supersedas
was proper, and the only remedy open to
the petitioner was by mandamus to hear
the cause. The latter proceeding would
bring the complaint in the action before
this court, and the question of jurisdiction
would be directly determined.
STILES, J,