McPheeters

Respondent brought this action on April 1, 1932, against the appellant and certain other persons, to secure an injunction prohibiting them using or conducting certain premises in the city of Modesto as a dance hall, or giving dances therein or permitting them to be so used.

The court below issued a temporary restraining order upon the verified complaint, without notice. An order to show cause why a preliminary injunction should not be granted was issued, returnable April 9, 1932. On April 8, 1932, the defendant, Teddy McMahon, appellant herein, served and filed a general demurrer to the complaint and an affidavit in opposition to the granting of a preliminary injunction. The other defendants did not appear. Counsel for the parties so appearing stipulated in open court that a hearing might be had on the eighth day of April, 1932, on the demurrer and order to show cause. It appears from the bill of exceptions that on said day the plaintiff had witnesses in court and was prepared to present oral testimony in support of his application but that counsel for the defendant McMahon stated in open court that it would not be necessary to take the testimony of any witnesses and that said…