The demurrer having been sustained, and the plaintiffs not having amended their complaint, there was nothing to sustain the injunction, and it was therefore properly dissolved. (1 Daniel Ch. Pr. 668; Mitford Eq. Pl. 254.)
An injunction will not be granted pending a demurrer. (1 Daniel Ch. Pr. 666; 3 Atkins, 496; 13 Vesey, 164.) If the bill be held insufficient upon demurrer, it is error to continue the injunction. (Blakeny v. Ferguson, 4 English, 487; 11 Paige, 166.)
Whether the Court below erred in sustaining the demurrer or not, is not a question now before the Court, as there is no final judgment, which would enable an appeal to be taken, in which it could be investigated. If the appellants desired to raise this question in order to aid them in the injunction, they should have asked the Court to enter a final judgment, and then the whole matter could be investigated.
JUDGES: Cope, J. delivered the opinion of the Court. Baldwin, J. and Field, C. J. concurring.
OPINION
COPE, Judge
This is an appeal from an order dissolving an injunction.
The injunction was granted upon an order to show cause, and after a full hearing of the case upon the merits. It was dissolved upon the ground of the insufficiency of the complaint. The order granting it might have been appealed from, and in our opinion this was the only remedy open to the defendants. The Practice Act (sec. 118) provides that " If an injunction be granted without notice, the defendant, at any time before the trial, may apply upon reasonable notice to the Judge who granted the injunction, or to the Court in which the action is brought, to dissolve or modify the same." The right to move for a dissolution is not given in any other case, and we are clearly of opinion that no such right exists.
This point was expressly decided in Natoma Water and Mining Co. v. Clarkin (14 Cal. 544 ). The Court said: " It appears that, upon filing the complaint, an order was issued to the defendants, to show cause why an injunction, as prayed for, should not be issued, and upon return of the order, cause was shown, which being deemed insufficient, the injunction was granted. Subsequently, upon the filing of the answer, a motion for dissolution was made and sustained. In its rulings in this respect the Court below erred. By the statute, the right to a temporary injunction pending the action is considered as adjudicated by the decision at the hearing upon the order to show cause. The remedy of the defendants in such case, when the right to apply for a dissolution upon the filing of the answer is not expressly reserved, is by appeal. The privilege of moving for dissolution upon the filing of the answer, is limited to cases where the injunction is originally granted without notice to the adverse party."
The order dissolving the injunction is reversed, and the cause remanded.