Jerolaman v. Foster

28 Ind. 232

• Court: Indiana Supreme Court
• Decided: November 15, 1867
• Status: Published

Opinion

Frazer, C. J.

— This was an appeal from an order of a judge in vacation, granting an injunction to restrain the commission of waste by a mortgagor upon the mortgaged premises, after a final decree of foreclosure. It is not very clear that the complaint upon which the order for injunction was obtained was ever filed in any court; it is certain that no summons had ever issued, nor had any publication of notice. been made. There could, therefore, be no temporary injunction. It could not be granted as in the foreclosure suit, for that was terminated by a judgment. As in a new action for injunction, it could not be granted for the reason that no such suit had been, or has yet been, commenced. 2 G. & H., § 34, p. 59; id. § 138, p. 133.

D. P. Baldwin, for appellant. W. Z. Stuart, S. T. McConnell and Winfield, for appellees.

The order is reversed, with costs.