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Brast v. Kanawha Oil Co.

Brast v. Kanawha Oil Co., 33 S.E. 302 (W. Va. 1899)
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Court
West Virginia Supreme Court · State Highest Courts
Decided
May 6, 1899
Judges
Dent, English
Citations
33 S.E. 30246 W. Va. 6131899 W. Va. LEXIS 88
Disposition
Dismissed.
Headnotes
Appealable Order. An ex parte order granting an injunction is not appealable until after a motion made to vacate or set it aside, (p. 613.)
Summary
Appeal from Circuit Court, Wetzel County. Suit by M. A. Brast against the Kanawha Oil Company and others. Decree for plaintiff and defendant oil company appeals.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Dent

Text extracted by OCR from a scanned original; check the original for exact wording.

Dent, President:

M. A. Brast moves the Court to vacate an order granting an appeal from an ex farte order of the judge of the circuit court of Wetzel County granting an injunction. Such an order is not appealable.. It is not an adjudication between parties. One side has not been heard, and until he moves the court that granted the injunction to correct it, he has no right of appeal. Appeals are to correct errors committed after hearing, and not to review mere preliminary orders, madie in the absence of one of the litigants. Such orders are. still in the breast of the court until finally heard and determined. The party affected thereby has *614 an easy remedy by motion, and an appeal will not lie until sucb motion proves ineffectual. 2 Enc. Pl. & Prac. 96; Aldinger v. Pugh, 57 Hun, 181 , 10 N. Y. Supp. 684 ; Gibson v. Martin, 8 Paige, 481 ; Skidmore v. Davis, 10 Paige, 816 ; In re Johnson’s Estate, 27 Hun, 538 ; In re Dunn (Sup.) 14 N. Y. Supp. 14 ; State v. District Court First Judicial Dist. 52 Minn. 283 , ( 53 N. W. 1157 .) Therefore the appeal in this case is dismissed, as improvidently awarded.

Dismissed.

How later courts describe this case

Explanatory parentheticals written by citing courts — 2 in all; the most informative distinct ones are shown.

1900: 11901: 11903: 11998: 119002026peak 1900 · 1

Relies on it most ⓘ

  1. Kessel v. Leavitt511 S.E.2d 720 (W. Va. 1998)
  2. Goff v. Goff46 S.E. 177 (W. Va. 1903)
  3. Clark v. Bryan37 S.E. 543 (W. Va. 1900)
  4. Board of Education v. Ward40 S.E. 344 (W. Va. 1901)

Most recent

  1. Kessel v. Leavitt511 S.E.2d 720 (W. Va. 1998)
  2. Goff v. Goff46 S.E. 177 (W. Va. 1903)
  3. Board of Education v. Ward40 S.E. 344 (W. Va. 1901)
  4. Clark v. Bryan37 S.E. 543 (W. Va. 1900)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
State ex rel. Norris v. Dist. Court First Judicial Dist., 53 N.W. 1157 (Minn. 1893) 18
Aldinger v. Pugh, 10 N.Y.S. 684 (N.Y. Sup. Ct. 1890) 16
Gibson v. Martin, 8 Paige Ch. 481 (1840) 10
In re Dunn, 14 N.Y.S. 14 (N.Y. Sup. Ct. 1891) 3

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