State ex rel. Bender v. Johnston

97 P. 790, 78 Kan. 615, 1908 Kan. LEXIS 117

• Court: Supreme Court of Kansas
• Decided: October 10, 1908
• Docket: No. 15,643
• Status: Published

Opinion

The opinion of the court was delivered by

Smith, J.:

Twenty-six assignments of error are made, Nos. 1, 2 and 3 of which are objections to the-jurisdiction of the probate judge to make the order which he granted. Section 239 of the civil code was. amended by chapter 281 of the Laws of 1901 (Gen.. Stat. 1901, §4686), and by the amendment probate-judges were devested of the power to allow temporary injunctions, and were authorized to issue restraining-orders only upon certain contingencies. This is now the limit of the jurisdiction of a probate judge in this regard. “Temporary injunction” and “restraining order” are often used synonymously. Our statute and the better usage limits the meaning of “restraining order” to such an order as is operative only until a. hearing can be had upon an application for an injunction, and of “temporary injunction” to an order operative usually until the final hearing of the case in which it is issued. (Civ. Code, §241; 8 Words & Ph. Jud. Def. 6902; 7 Words & Ph. Jud. Def. 6183; 16 A. & E. Encycl. of L. 345-349.)

The restraint which the order purports to impose,, and not the name given to it, determines its true name- and character. The order of the probate court enjoined the appellant until the further order of the district court or the judge thereof in the premises. It required no revocation, but expired upon the making of an order by the district court or judge. It was-simply a restraining order, and within the jurisdiction, of the probate judge.

The fourth objection is that the evidence before the-probate judge was insufficient to justify the issuance-of the order. As the affidavits were verified only upon information and belief, the allowance of the order thereon was probably erroneous, but, the court having jurisdiction, its order was not void. (Rowe v. Palmer, 29 Kan. 337; 16 A. & E. Encycl. of L. 438.)

Objections numbered 5 to 20, inclusive, are presented as one, the principal question raised being the right to a jury trial upon demand therefor. The various propositions presented have been determined in this court adversely to the contention of appellant. (The State v. Thomas, 74 Kan. 360, 86 Pac. 499, and cases there cited.) We adhere to the conclusion therein set forth.

The proper manner for parties and their counselors to test the validity of an order of court is not to defy the order, but to move, in the court which issued it or in some court having supervisory jurisdiction, to have it set aside. The appellant in this case was fortunate in the leniency of the court.

The appellant does not appear to have especial interest in the question whether the school fund or the county treasurer is to be enriched by the fine imposed, and it is not for our consideration here.

We have examined all the other questions presented and find no prejudicial error. The judgment is affirmed.