Hess v. Winder

' The learned Judge of the Court below was of the opinion that this was a proper case for an injunction, on the ground that the title to the mining ground is in controversy between the parties, and that the property should be preserved pending the litigation—and such is the doctrine repeatedly announced by this Court—but that, as this Court were of opinion that upon the record before them (See 30 Cal. 349) the plaintiffs were not entitled to judgment, an injunction should not now be granted or continued except upon a showing sufficient to have given the plaintiffs a new trial, had the verdict been for the defendants. We do not agree with this view, as to the effect to .be attributed to the decision of this Court. The decision was not that the plaintiffs were not entitled to relief upon the facts stated in their complaint, but only that upon the evidence contained in the *273statement, the plaintiffs were not entitled to recover. The statement has no office to perform on the new trial. Perhaps it did not contain all the evidence given by the plaintiffs to prove title, and if it did they may, on the new trial, offer other or further evidence.

When the judgment was reversed and the cause remanded for a new trial, it was returned to that Court for a trial upon the issues, and it stood in the same attitude, in all respects, as before the former trial. If the plaintiffs were entitled to an injunction before the former trial, and the injunction was ordered, they were entitled to retain it, upon the cause being remanded for a new trial.

Order modifying the injunction reversed.

Mr. Justice Shafter expressed no opinion.