
    (March 5, 1895.)
    BOISE CITY v. ARTESIAN HOT AND COLD WATER CO.
    [39 Pac. 566.]
    On petition for a rehearing. Modifying the judgment of this court rendered at this term, February 23, 1895.
   MORGAN, C. J.

In this case this court affirmed the decision of the lower court, sustaining the demurrer to the complaint, which, in effect, affirms the judgment of the lower court in dismissing the cause. In addition to affirming the decision of the lower court, as above stated, this court set aside the judgment of dismissal, in order to give the plaintiff opportunity to amend its complaint, and directed the district court to issue a temporary restraining order, to restrain the defendant from cutting off, or interfering in any way with the water supply furnished by the defendant to the plaintiff. The respondent asks for a rehearing, by reason of the action of this court in. setting aside the judgment of dismissal, and authorizing the temporary restraining order. We have examined the decisions cited in the petition for - rehearing, and others, and have no doubt of the authority of this court, under section 3818 of the Bevised Statutes of 1887, which provides “that the supreme court may reverse, affirm or modify any order or judgment appealed from and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had,” to make any modification whatever that it may deem proper and necessary, in the furtherance of justice between the, parties. We do not think it necessary to put the extremely technical construction upon this statute which was done by the supreme court of the state of California, but believe that a fair and liberal construction of the same fully authorizes this court to make the modification which was made in this case.

In regard to the point, however, that, as the complaint was held to be insufficient to maintain the action and procure the remedy sought — in other words, that it did not state facts sufficient to constitute a cause of action — therefore it was not sufficient to support a temporary restraining order, we believe the exception to be well taken. We have therefore determined to-change the order in this cause, and simply affirm the decision of the court below, with the direction to that court to add to the judgment of dismissal therein the words, “without prejudice to another action.” And it is so ordered.

Huston, J., concurs.

SULLIVAN, J.

I concur in the modification of the judgment of the court below as above ordered.  