Cherry Hill Gold Mining Co. v. Baker

California Supreme Court

Cherry Hill Gold Mining Co. v. Baker

82 P. 370, 147 Cal. 724, 1905 Cal. LEXIS 461

CourtCalifornia Supreme Court

DecidedSeptember 16, 1905

DocketSac. No. 1140.

StatusPublished

Cited by2 cases

This text of 82 P. 370 (Cherry Hill Gold Mining Co. v. Baker) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cherry Hill Gold Mining Co. v. Baker, 82 P. 370, 147 Cal. 724, 1905 Cal. LEXIS 461 (Cal. 1905).

Pincite

Opinion

HENSHAW, J.

The court having granted a preliminary injunction upon the verified complaint of plaintiff, subsequently, upon the ex parte application of defendants, modified this injunction in important particulars. The appeal is from this latter order, and involves the single question as to the power of the court so to do, without notice to plaintiff. This question must be considered as definitively settled in favor of appellant by the cases of Hefflon v. Bowers, 72 Cal. 270, [13 Pac. 690], and Page v. Vaughn, 133 Cal. 335, [65 Pac. 740]. In the latter case it is said: “The evident purpose of the foregoing statute (Code Civ. Proc., sec. 532) is to empower the court to dissolve its injunction only after notice to the plaintiff. The meaning of the statute is plain, and to put a construction on it that would dispense with the notice required by it, is to construe one provision of the statute out of existence, and thereby thwart the purpose of the legislature in enacting it.” There is not, of course, here involved the question of the power of the court to modify or dissolve its preliminary injunction. It is merely a question of procedure. It is still always open to defendant, upon such notice as the court may direct, to obtain all the relief to which he may be entitled.

*725 For the foregoing reason the order appealed from is reversed.

McFarland, J., and Lorigan, J., concurred.

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HENSHAW, J.

The court having granted a preliminary injunction upon the verified complaint of plaintiff, subsequently, upon the ex parte application of defendants, modified this injunction in important particulars. The appeal is from this latter order, and involves the single question as to the power of the court so to do, without notice to plaintiff. This question must be considered as definitively settled in favor of appellant by the cases of Hefflon v. Bowers, 72 Cal. 270, [13 Pac. 690], and Page v. Vaughn, 133 Cal. 335, [65 Pac. 740]. In the latter case it is said: “The evident purpose of the foregoing statute (Code Civ. Proc., sec. 532) is to empower the court to dissolve its injunction only after notice to the plaintiff. The meaning of the statute is plain, and to put a construction on it that would dispense with the notice required by it, is to construe one provision of the statute out of existence, and thereby thwart the purpose of the legislature in enacting it.” There is not, of course, here involved the question of the power of the court to modify or dissolve its preliminary injunction. It is merely a question of procedure. It is still always open to defendant, upon such notice as the court may direct, to obtain all the relief to which he may be entitled.

*725 For the foregoing reason the order appealed from is reversed.

McFarland, J., and Lorigan, J., concurred.

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Bluebook (online)

82 P. 370, 147 Cal. 724, 1905 Cal. LEXIS 461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherry-hill-gold-mining-co-v-baker-cal-1905.

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