Walberg

Appeal from an order dissolving a temporary injunction. The plaintiff, it is claimed, without giving notice as required by section 527 of the Code of Civil Procedure, obtained an injunction pendente lite staying the execution of a judgment in favor of defendant. The injunction was granted by the judge in chambers. The record discloses that the defendant Underwood was represented by attorney at the hearing of the application. The order appealed from, dissolving this injunction, was granted without a hearing on the merits, on the alleged ground that the original order granting 'the injunction was made without notice.

Two points of law are involved in this appeal: First: Was the appearance made by defendant’s attorney such as to constitute a waiver of the statutory notice? Second: Had the court jurisdiction to dissolve the temporary injunction without a hearing on the merits? It appears from the bill of exceptions that Mr. Kelly, attorney for plaintiff and appellant here, appeared in court before Honorable Howard A. Peairs, one of the judges of the superior court for the county of Kern, where the matter was pending, and asked for this temporary injunction. Mr. Fitzgerald, an…