
    Argued on. motion to set aside restraining order May 22, 1917.
    Temporary injunction dissolved May 29, 1917.
    NOYES-HOLLAND LOGGING CO. v. PACIFIC LIVE STOCK AND LUMBER CO.
    (165 Pac. 236.)
    Appeal and Error — Supreme Court — Jurisdiction — Injunction—Pendente Lite.
    1. The Supreme Court will not continue an injunction restraining a plaintiff in ejectment from proceeding because a chancery suit affecting defendants’ right to the property is pending on appeal, where the parties are solvent and defendant’s rights can be adequately protected after determination of the chancery appeal.
    Courts — Discretion of Court — Injunction—Dissolution.
    2. A temporary restraining order granted without notice to opposing party is subject to dissolution on proper showing, and the question of whether or not the justice who granted the same abused Ms discretion is not involved.
    [As to right to grant temporary injunction before institution of aetion, see note in Ann. Cas. 1913E, 462.]
    From Columbia: James A. Eakin, Judge.
    Suit on cross-bill in equity by the Noyes-Holland Logging Company, a corporation, and the Portland Lumber Company, a corporation, are plaintiffs-appellants, against tbe Pacific Live Stock & Lumber Company, a corporation, and M. T. 0 ’Connell are defendants-respondents, in -wbicb suit tbe appellants prayed for and obtained, ex parte, a temporary restraining order, pendente lite. Respondents move to dissolve the injunction. Temporary injunction dissolved.
    Department 1. Statement Per Curiam.
    Tbe Pacific Live Stock & Lumber Company began an action in ejectment to recover from tbe plaintiffs here tbe possession of tbe southwest quarter of tbe southwest quarter of section 3, township 7 north, range 3 west, in Columbia County. These plaintiffs interposed a cross-bill in equity whereby they sought to correct an alleged mistake in a contract between tbe Portland Lumber Company and M. T. O’Connell granting them tbe right of way for a logging railroad over bis land so that they could justify their possession of the land in dispute under tbe agreement as thus amended. As part of tbe relief sought under tbe cross-bill they prayed for injunction against tbe prosecution of the law action and to that end obtained a temporary restraining order pendente lite. Tbe Circuit Court beard tbe cross-bill on its merits after issue formed thereon and dismissed it allowing tbe ejectment action to proceed. These plaintiffs then appealed and gave a bond stipulating for tbe payment of all costs, disbursements and damages wbicb might be adjudged against them on tbe appeal. Their opponents, however, prepared to try tbe action of ejectment, whereupon plaintiffs in tbe suit applied to and obtained from one of tbe justices of this court ex parte a temporary injunction forbidding tbe prosecution of tbe action. Tbe case has been presented to ns on a motion to dissolve this temporary injunction.
    Temporary Injunction Dissolved.
    
      Mr. Thomas Mannix, for the motion.
    
      Mr. Hugh Montgomery and Messrs. Platt & Platt, contra.
    
   Opinion

Per Curiam.

The leading case on this subject is Livesley v. Krebs Hop Co., 57 Or. 352 (97 Pac. 718). It was there decided that although injunction was not within the original jurisdiction of this court, yet in order to preserve its jurisdiction over the subject of the suit on appeal it would issue a temporary restraining order pendente lite. In that suit the plaintiffs sought to prevent the Krebs Hop Company from enforcing a judgment against them on the ground that the company was insolvent and that, having a good reason for resisting the judgment on appeal, the remedy would be entirely lost to the plaintiff on account of the insolvency of the concern claiming the judgment. Manifestly, under such circumstances, the court would find its efforts futile to render complete justice in the ease on account of the inability of the company to restore what it might have unjustly collected. In Kellaher v. Portland, 57 Or. 575 (110 Pac. 492), Mr. Justice Eakin said:

“This court cannot by injunction protect property rights, or enjoin acts that might result in damage to a litigant. This is the province of the Circuit Court, and this court can only review its action on appeal.”

To a like effect is Brice v. Younger, 63 Or. 4 (123 Pac. 905).

In this case there is no suggestion of the insolvency of either party or that the estate of either of them in the land will be irretrievably clouded or destroyed unless the injunction’be continued to the end of the litigation. As said in Brice v. Younger, supra, the plaintiff in ejectment would proceed at his peril while the cross-bill remains open for the consideration of this court. If the proceeding in chancery is well founded the court can exercise its equitable powers in restoring the defendant in ejectment to its former situation at the expense of opposing parties. There is no pretense that the equitable authority of the court will be paralyzed if occasion should arise for its use.

All the cases hold that injunction in such instances rests in the sound discretion of the court. The temporary restraining order having been granted without notice to the opposing parties, it is of course subject to dissolution on a proper hearing and the question of whether or not the justice who granted it abused his discretion is not here involved. It not being apparent to the court that the rights of either party will be prejudiced beyond repair by withholding this injunction, an order will be entered dissolving the temporary restraining order so that the action in ejectment may regularly proceed subject of course to the final disposition of the cross-bill. Injunction Dissolved.  