Pfister v. Wade

59 Cal. 273

• Court: California Supreme Court
• Decided: July 15, 1881
• Docket: No 7,541
• Status: Published

Opinion

The Court:

It is admitted by respondent that the bill of exceptions was presented and settled in time if Tregambo v. Comanche Mill and Mining Company, 57 Cal. 501, establishes the practice. That case was determined in bank,and wedo not feel authorized here to reconsider the question there decided, The appeal is from an order denying a motion to dissolve a preliminary injunction issued upon the complaint. On the former appeal this Court held that the complaint did not sustain the judgment. The injunction should therefore have been dissolved, unless the complaint was so amended prior to or contemporaneous with the application to dissolve it, as that the pleading set forth a cause of action which would uphold a decree.

We may admit, without deciding the point, that the act (Statutes 1881, p. 19) amending section 386 of the Code of Civil Procedure, applies to actions pending when the amendment was adopted. But the complaint here was held insufficient for other reasons than those which the amendment declares shall no longer constitute objections to a bill of inter-pleader. (Pfister v. Wade, 56 Cal. 43.)

Order reversed and cause remanded.