Upon due consideration, ordered that the within petition be dismissed, for reasons herewith filed.
Reasons for Refusing Petition for Rehearing. In the foregoing opinion the following statement is made:
"The Court found that defendants had actual notice of the injunction. As there was evidence to support the finding, the question is not open to review."
In their petition for rehearing appellants say this statement contains two errors: First, that the Circuit Court found as stated; and, second, that there was evidence to support the finding. In saying that the Court below found that appellants had actual notice of the injunction we merely gave our interpretation of the language used, and, after careful reconsideration of the case, in the light of the petition and the argument thereon, we are satisfied that it was correct.
The record shows that the defenses set up in the return of defendants to the rule were: (1) Denial that they left the gates open; (2) that the gates were not constructed according to the requirements of the statute; (3) that they did not know of the injunction. On the first and second there were direct testimony both ways. Upon the third the record shows that the action was brought to permanently close the road in question, and enjoin defendants *Page 247 from using it; that defendants contended that it should be kept entirely free and open without any obstruction being placed across it by plaintiff; that, on motion of plaintiff, an injunction pendente lite was granted by Judge Wilson, which was, on motion, modified by Judge DeVore, so as to allow the public and especially the defendants to travel the road, but gave plaintiff the right to erect and maintain gates thereon; that, pending the hearing on the merits, plaintiff obtained a rule from Judge Prince, requiring defendants to show cause why they should not be attached for contempt for having broken down the gates erected by him; that defendants showed for cause that the copy of the order of Judge Wilson which had been served upon them was not certified, and on that ground Judge Prince discharged the rule; that at the trial on the merits both defendants were present and knew of the issues submitted to the jury and the verdict thereon; that the verdict was that the road was a neighborhood road (on which the statute allows the erection of gates) and plaintiff had not the right to close it; but that he was entitled to recover of defendants $8 damages for breaking down the gates erected thereon by him. Thereafter the permanent order of injunction of November 22, 1912, was passed by Judge Spain, who presided at the trial on the merits. From that order defendants served notice of intention to appeal. Besides this, J.M. Bradham says in his affidavit that on February 1st he told the defendant, Ulric Jennings, who is a son and codefendant of F.O. Jennings, of the order of Judge Spain, and that said defendant replied that the gates would be kept open, and that on February 2d both defendants passed through the gates in a buggy, and that the defendant, F.O. Jennings, got out and opened the gates and left them open. Leaving out of consideration the presumption that parties to a suit knew of the judgment therein (2 High on Injunctions, sec. 1422; Hawkins v. State, 126 Ind. 294, 26 N.E. 43), the foregoing testimony and the inferences legally deducible from it fully *Page 248 warranted the Court in concluding, as it did on the hearing for contempt, in the following language:
"That the said return is insufficient; that the said F.O. Jennings and the said Ulric Jennings have plainly violated the terms of the said order and are in contempt of Court."
In view of the denial of the return of knowledge of the order, the conclusion reached clearly involved the finding that defendants did know of the order, and, as said, it was warranted by the evidence.
Petition dismissed.