Amador ledger., 1909-11-12

opinion the question now presenst
whether an injunction granted by this
court to the plaintiffs in this action who
are about to have judgment entered
against them can have any operative
force after the entry of said judgment?
II it can, the injunction should probably
issue If it cannot then an order for the
injunction would be an idle act, for the
Injunction if granted would be dissolved
Immediately by the entry OF judgment.
AS to the duration of an injunction
pendente lite the rule is stated as fol-
lows, in the Encyclopedia of Pleading
and Practice vol 10 page l029
"a preliminary Injunction is abro-
gated by the final decree and "any res
trant thereafter desired should be insert
ed in the final decree.
OF course the court cannot impose any
restrain in its final decree in this action
because it has determined that plaintiffs
are not the owners and are not entitled
to any relief
In Gardner VS.. Gardner, 81 New York
page Is, a preliminary Injunction has
been granted on behalf OF plaintiff. She
prevailed in the action but in the final
decree no mention was made of the in
junction, and the New York court of
appeals in discussing the effect of pre-
lminary injunctions there said "There
can be no question" that the injunction
was abrogated by the judgment if no
appeal had been taken, and the bring
ing up of such appeal cannot change its
legal effect upon any sound principle. "
In Freeman VS.. CASTOR, IL Cal. 372,
plaintiff had brought his action to re-
cover damages for trespasses upon a
mining claim and also to perpetually
enJoin defendants from future trespass.
The verdict went for the defendants and
judgment was rendered in their favor for
costs. Thereupon defendants moved
for an amendment of the judgment by
adding a recital that the injunction
be and is hereby dissolved From the
refusal of the trial judge to so amend,
defendants appealed, and the supreme
court of this state said: "The plaintiffs
so far have failed to show that they
have any cause of action against the de-
PENDANTS; and failed in their action,
after trial cannot claim to rest in an in
junction which was merely anciilary to
that acion, and a portion of the remedy
for its successful prosecution.
In Harris VS. McGregor, 20 Cal. l25,
which was an action to recover damages
and for perpetual injunction to prevent
diversion of certain waters by defend
ant preliminary Injunction was granted
plaintiff. At the trial the court granted,
a nonsuit, and an order was made dis
solving the injunction. AS to this pro-
cedure the supreme court said at page
l29:
In view of the judgment of nonsuit,
the order dssolvng the Injunction was
proper; the latter followed the form
as a matter of course. Upon the return
of the case to the court below, the plain
tiff will he entitled to a renewal of the
Injunction upon a proper application. y
Lambert VS.. Haskell, 80 Cal, page
81, was an action involving the liabili-
ties of sureties upon an undertaking
given to procure preliminary injunc-
tion. In discussing the law of pre-
liminary injunction in order to deter
mining such liability of the sureties it
was said at page 62l:
"How long then does the preliminary
injunction last? We think that the whole
theory of preliminary injunction is
that it is to preserve the rights of the
party until the truth of the charge can
be regularly investigated. 1t is called
by the code provisional remedy, when
the truth of the charge has been sinvest-
igated and final decree made, there isl
no longer any necessity for a prelim-
mary injunction, 1t has served its pur-
pose, and its functions cease.
And at page 622 it is said:
1.-The proposition we have endeavored
to state was recently expressed by the
court of appeals of New York, inreason-
ing to a different point as follows
An injunction by order is provisional
remedy and temporary in its character
1t assumes pending litigation, in
which all questions are to be settled by
judgment and operates 'only until
the judgment is rendered. If by that
permanent injunction is granted the
temporary one of course ended and