This is a petition for rehearing on the grounds hereinafter mentioned.
I. It is submitted that the Court overlooked the distinction made by the appellant in the first exception, between an order of suspension to which it was entitled as a matter of course, and an order of injunction which, under section 243 of the Code, is only granted upon a written undertaking. The appellant contends that section 243 is inapplicable, as this is not an action for injunction, but simply to test a disputed right, and that upon the bringing of the action, the condemnation proceedings were ipsofacto suspended without the affirmative order of the Court.
Section 239 of the Code provides that "an order of injunction may be made: 1. Where it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or II. When, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done, in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act."
Section 243 of the Code provides that "when no provision is made by statute as to security upon an injunction, the Court or Judge shall require a written undertaking on the part of the plaintiff."
The case under consideration comes within the provisions of the foregoing sections, and his Honor, the Circuit Judge, did not have the power to dispense with the requirement as to an undertaking. Hunt v. Smith, 1 Rich. Eq., 277;Smith v. Smith, 51 S.C. 379, 29 S.E., 277. Furthermore, if the complaint should be regarded as an application or petition for an order of suspension, and conceding that the Circuit Judge had the power to grant such order without *Page 556 requiring an undertaking, nevertheless it was within his discretion, which was not abused.
II. It is submitted that this Court overlooked the distinction between ancillary and independent suits. Among the authorities upon which the appellant relies is the case of Freeman v. Howe, 24 How. (U.S.), 460, to show that the action herein is ancillary to the condemnation proceedings, in which the Court says: "The principle is, that a bill filed on the equity side of the Court to restrain or regulate judgments or suits at law in the same Court, and thereby prevent injustice or an inequitable advantage under mesne or final process, is not an original suit, but ancillary and dependent, supplementary merely to the original suit, out of which it had arisen."
The appellant also quotes the language of Mr. Justice Bradley, in Wood, 112, in which, after stating he was unable to find any precedent for a bill for injunction to stay proceedings in the same Court, says: "I cannot see any necessity of it. If any circumstances exist which render it improper or inequitable to carry on proceedings in this Court, they can always be brought to the attention of the Court by motion or petition in the suit. I shall direct the bill as such to be dismissed, but allow it to stand as a petition in the several suits sought to be suspended. Supposing the matter to be properly brought before the Court, on petition and motion thereon, the question arises whether the proceedings in this Court ought to be stayed."
Conceding that these principles would prevail if the action herein and the condemnation proceedings were in the same Court, they are not applicable, for the reason that this action was commenced in the Court of Common Pleas, while the condemnation proceedings were instituted in a special statutory tribunal from which an appeal may be taken to the Court of Common Pleas.
III. It is, lastly, submitted that this Court overlooked the question presented by the fourth exception, which assigned *Page 557 as error the order requiring the plaintiff to enter into an undertaking, while no such undertaking was required of the defendant, thereby denying the plaintiff the equal protection of the laws. As it is the plaintiff and not the defendant that seeks the injunction, we see no ground whatever for sustaining this assignment of error.
It is, therefore, ordered, that the petition be dismissed, and that the order heretofore staying the remittitur be revoked.