Dimick v. Latourette

Mr. Justice Burnett

delivered the opinion of the court.

1. The granting of the preliminary injunction was merely ancillary to the suit. Without the existence of a suit the injunction would not have been issued, and when the suit falls, with it perishes its appanage, the preliminary injunction. The temporary restraining order of the court thus became functus officii, and had spent its force: Thomsen v. McCormick, 136 Ill. 135 ( 26 N. E. 373 ). This doctrine is supported by analogy by Livesley v. Krebs Hop Co., 57 Or. 352 ( 97 Pac. 718 , 107 Pac. 460 , 112 Pac. 1 ), holding that this court has authority to issue an injunction in aid of its jurisdiction to preserve the subject of litigation until the ease can be finally heard and determined on appeal. In that case the Circuit Court had dismissed a suit in which a preliminary injunction had been issued. The plaintiff appellant applied to, and obtained from, this court a temporary injunction covering the same scope as the like order in the Circuit Court. If the preliminary injunction of the Circuit Court had survived a dismissal of the suit by the Circuit Court in that instance, the exercise of jurisdiction of this court in the issuance of an injunction pendente lite here would have been vain and superfluous. The action of this court in that *233 respect was correct only on the theory that the original temporary injunction was extinguished by the final decree of the Circuit Court dismissing the suit. We conclude, therefore, that when the Circuit Court dismissed the present suit, there was then no obstacle to prevent the treasurer from paying the warrants in question; the injunction obstructing such action having been destroyed.

2. The case in its present condition is not like Lewis v. Kingstown, 16 R. I. 15 ( 11 Atl. 173 , 27 Am. St. Rep. 724 ), the only precedent cited by the plaintiff on this motion to dismiss. That was a suit to enjoin trespass in the removal of the plaintiff’s house and its foundations. The contention of the defendants was that the house was in a street, and, although the temporary injunction was issued, yet, prior to the final determination of the case in the court awarding the preliminary restraining order, the defendants razed the house and completed the trespass. It was very properly held there, under those circumstances, that while the suit was pending the defendant would gain nothing by disobedience of the court’s order, and that the cause would be retained for the purpose of awarding proper damages for the trespass sought to be enjoined. That decision would properly have applied to the instant case if, while it was yet pending in the Circuit Court and yet undetermined, the treasurer had disobeyed the order of the court and paid the warrants.

The warrants have, in fact, been paid without any legal obstacle to prevent the same; the suit having been dismissed. The controversy is at an end, and to entertain the appeal would he merely to discuss and determine an academic question without the existence of any actual controversy. This we have always declined to do: State ex rel. v. Grand Jury, 37 Or. 542 ( 62 Pac. *234 208 ); Portland v. Investment Co., 59 Or. 598 ( 117 Pac. 991 ); Eilers Piano House v. Pick, 58 Or. 54 ( 113 Pac. 54 ); State ex rel. v. Fields, 53 Or. 453 ( 101 Pac. 218 ).

The appeal is dismissed.

Dismissed.