Fremont v. Merced Mining Co.

Opinion — Burnettterry

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring.

Application for mandamus. The plaintiff commenced his action in the District Court of the Thirteenth Judicial District, and upon his ex parte application, an order was made by the Judge granting an injunction restraining the defendant from working certain quartz-veins. After due service of the injunction, the defendant, without notice to the plaintiff, applied for a modification of the order, which was granted by the Judge, upon the filing of a bond by defendant in a sum specified. After the order was made modifying the order granting the injunction, the defendant went on to work the quartz-veins mentioned, and the plaintiff, upon the proper affidavit, made application to the Judge for an attachment for contempt. This application was refused, and the plaintiff now applies to this Court for a mandamus to compel the Judge of the Court below to issue the attachment, and hear the case of the alleged contempt.

The Judge very properly refused the application for the attachment. The order granting the injuction having been modi.fiod, there was no contempt committed. The Judge had a right to modify the order, under the provisions of section three hundred and thirty-four of the Practice Act. 8 How. Pr. R., 440. If the Judge erred in making the order, the remedy of the plaintiff was by appeal. § 347.

Application denied.