Grant v. Johnston — 45 Cal. 243

Majority

p. 243

GRANT v. JOHNSTON.

Headnote

Appeal from Refusal to Grant an Order.—An appeal does not lie from, the refusal of a Oourt to grant an application for an order to show cause why an injunction should not issue. Such refusal is not an order refusing to grant an injunction.

George E. Grant filed a complaint in the District Court of the Third Judicial District, County of Alameda, against the defendant as City Marshal and ex officio Tax Collector of the City of Oakland, in which he alleges that he is the owner of a block of land in Brooklyn; that the land was

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assessed by the Assessor of Brooklyn between the first Monday of May and the first Monday of August, 1872; that in November of the same year the territory within the boundaries of Brooklyn was annexed to Oakland; that the defendant has become possessed of the Brooklyn assessment roll, and is about to sell the property of plaintiff for the amount claimed to be due for taxes; and that such a sale would cause an injury to the plaintiff by creating a cloud upon his title for which he has no remedy at law. The complaint prays that the defendant be enjoined from selling the land. The plaintiff applied for an order upon the defendant to show cause why an injunction should not issue to restrain the enforced collection of the taxes by a sale of the land. The Court ruled as follows:

“I deny the application, upon the ground that a Tax Collector cannot be enjoined in the collection of taxes, because the plaintiff" has an adequate remedy at law.”

The plaintiff appealed.

Walter Van Dyke, for Plaintiff,

moved for leave to file the transcript and to place the cause on the calendar of the Supreme Court as an appeal from an order. He argued that as the Court below had denied the application for a reason that would necessarily lead to a denial of the injunction, the denial of the application was equivalent to an order refusing an injunction. It was a final determination of the plaintiff’s remedy.

H. H. Havens, for Defendant,

opposed the motion, on the ground that an appeal cannot be taken from such a proceeding.

The refusal of an application for an order to show cause why an injunction should not issue is not “ an order * * *

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refusing to grant an injunction ” within the meaning of the second subdivision of section nine hundred and sixty-three of the Code of Civil Procedure, and therefore from such a refusal no appeal lies.

Motion to place cause on calendar denied.