Groton Independent Consolidated District No. 1 v. Townsend

209 N.W. 651, 50 S.D. 284, 1926 S.D. LEXIS 359

• Court: South Dakota Supreme Court
• Decided: July 6, 1926
• Docket: File No. 6058
• Status: Published

Opinion

GATES, P. J.

This is an action begun on May 29, 1925, to enjoin the county superintendent of schools from declaring the result of an election held to determine whether school district 17 — 2 should be withdrawn from plaintiff consolidated school district, and to enjoin the superintendent from calling an election pursuant to petition for the withdrawal of school district 17 — 1 from plaintiff district. On the same date an order to show cause was issued, returnable on June 16, 1925, why the defendant should not be enjoined from doing those things during the pendency of the action. It was provided in the order that defendant be restrained until the hearing upon such order.

A hearing was had on the return day, and on June 20, 1925, the trial court made an order dissolving and vacating the restraining order, but neither granted nor denied the injunction pendente lite. Plaintiff appeals from' that order.

The distinction between an injunction pendente lite and a restraining order, made without notice and without bond until the hearing upon an application for an injunction was fully explained in Beers v. City of Watertown, 42 S. D. 441, 176 N. W. 149, and it was held that am order such as the one now before us was not an appealable order under section 3168, Rev. Code 1919.

Pursuant to the authority of that case, the appeal is 'dismissed.

KNIGHT, Circuit Judge, sitting in lieu of DILLON, J. CAMPBELL, J., not sitting.