Majority
p. 639Coddington and Wife v. Webb. June 27, 1851.
Headnote
Injunction orders made ex parte, should be served as other orders made by a judge out of court, viz., by exhibiting the original order and delivering a copy to the parly served.Where service of an injunction order was made by delivering a copy without showing the original, it was held to be insufficient to bring the party into contempt for its disobedience.
Semb. It was sufficient, as notice, to preserve the plaintiffs’ rights.
(Before Sandford, Duer and Campbell, J. J.)
The defendant moved to open a default, by which the plaintiffs had taken an order for the appointment of a receiver. The motion was resisted on the ground that the defendant was in contempt for a violation of the ex parte injunction granted in the cause.
It appeared that the injunction order was served on the defendant by delivering to him a copy of the same, but without showing to him the original order signed by the judge.
H. Ketchum, for the defendant.
H. F. Clark, for the plaintiffs.
By the Court.
-(All the justices of the court concurring.) — Under the former practice, the defendant would probably be adjudged to be in contempt, for disobeying the injunction. But injunctions are now by orders and not by writ, and all orders are similarly signed, and all must be served in the same mode. For the purpose of founding a proceeding for a contempt of court, it was necessary in the courts of law, under the old system, to show the original with the signature of the judge, at the time of delivering the copy. The code of procedure has made no change in the practice in this respect. The service in this case was defective, and although it may
p. 640
have been sufficient as a notice of the injunction to save the rights of the plaintiffs, it does not suffice to found a proceeding for a contempt of court. (The default was opened, and the order appointing a receiver affirmed on the merits.)