Docket No. 595
Decided: Friday, January 24th, 1890
Opinion: 1 Wash. 18 (1890)
Court: Anders1 Court (1889-1892)
Anders
Dunbar
Hoyt
Scott
Stiles
Note: We post only slip opinion(s) as published at the time of the decision. Please consult Washington Reports printed volumes for the opinion(s) in their final form. Undetermined votes indicate that the opinion(s) have not been evaluated yet.
MAHNCKE v. CITY OF TACOMA, 1 Wash. 18; 23 P. 804 (1890).
No. 595.
SUPREME COURT OF WASHINGTON
January 24, 1890, Decided Appeal from District Court, Pierce County. The facts sufficiently appear in the opinion.
Court: Motion to dismiss granted with costs.
Counsel: Town & Likens, for appellants.
If the order denies the motion for injunction and dismisses the bill or action, it is appealable. High on Injunctions, § 1795 (2d ed.); Oberskotler v. Leubbering, 4 Mo. App. 481; Lieus v. Mabee, 25 Ill. 247; Shaw v. Hill, 67 Ill. 455; Weaver v. Poyer, 70 Ill. 567; Prout v. Lomer, 79 Ill. 331. Thomas Carroll, for appellees.
The granting or refusing to grant a temporary injunction or restraining order is a matter resting in the sound discretion of the court, and will not be interfered with, and from which an appeal will not lie. People v. Schoomaker, 50 N. Y. 500; Paul v. Munger, 47 N. Y. 469; Pleasants v. Vevay, 42 Ind. 391; High on Injunctions (2d ed.), § 1696 to 1708, and notes.
Section 446 of the Code Wash. T., in so far as it allows appeals from an order granting or refusing a temporary injunction, is contrary to the organic act (§ 1869, Rev. Stat. U. S.) McCormick v. Walla Walla, etc., R. R. Co., 1 Wash T. 512; N. P. R. R. Co. v. Wells, Fargo & Co., 2 Wash. T. 303.
Judge(s) SCOTT, J. ANDERS, C. J., and DUNBAR, HOYT and STILES, JJ., concur.
Opinion By: SCOTT The opinion of the court was delivered by SCOTT, J.--The appeal in this case is from an order refusing appellants a temporary injunction, and also dismissing the action. Appellees moved to dismiss on the ground that no appeal lies from such an order.
Under the organic act no appeal could have been taken from an order refusing a temporary injunction, as the same is not a final decision. And had the order stopped with refusing the injunction the appeal would not lie. This goes further, however, and purports to summarily dismiss the suit. The complaint states a cause of action, and, from the bare record, this part of the order is unaccountable, and manifestly erroneous. Were the record unaided in any way, the case would have to be reversed on that ground; but counsel for appellants advisedly states to the court in his argument here, that the order dismissing the action was made at appellants' request.
This being admitted by appellants, we think they are bound by it in this court, and that we would not be justified in viewing the case in any other light; and, as it was a voluntary dismissal, no appeal could be taken therefrom.
The motion to dismiss is therefore granted with costs.
ANDERS, C. J., and DUNBAR, HOYT and STILES, JJ., concur.