Dissenting. — I am unable to agree with the majority opinion in its holding that a judge of the district court has jurisdiction to sign an order for an injunction to be issued by the clerk, in an action which has not been commenced and is not in existence, at the time the order is granted by such judge.
See. 4068, Rev. Codes, provides: “An action is commenced within the meaning of the title, when the complaint is filed.’’ The record in this ease shows that the complaint in the action in which the trial court assumed to make an order for *426an injunction, and in which the clerk issued an injunction, was filed on August 17, 1912, and on the same day the injunction was issued, and that the order upon which such injunction was issued was signed by the district judge on the 16th of August, 1912, and filed on the 17th of August. See. 4287, Rev. Codes, provides that an injunction is a writ or order requiring a person to refrain from a particular act. It may be granted by the court in which the action is brought or by the judge thereof. In this case the order for the injunction was granted by the judge, and see. 4289, Rev. Codes, provides: “The injunction may be granted at the time of issuing the summons, upon the complaint, and at any time afterward, before judgment, upon affidavits.”
Thus it will be seen that the clerk has no authority to issue an injunction without it be granted by the court or by the judge, and it may be granted at the time of issuing the summons upon the complaint. If it can be granted only at the time of issuing the summons upon the complaint, the complaint must necessarily be filed, because the summons cannot be issued until the complaint is filed. This latter section authorizes the injunction to be granted at the time of issuing the summons upon the complaint, and the granting of the injunction is an act of the judge. Therefore, the judge cannot grant an injunction, under the express and absolute language of this statute, except at the time of issuing the summons upon the complaint, or afterward before judgment upon affidavits.
The supreme court of this territory had under consideration the appointment of a receiver, in the case of Gold Hunter Mining etc. Co. v. Holleman, 3 Ida. 99, 27 Pac. 413, and the question arose whether the judge of the district court had jurisdiction to appoint a receiver before the complaint was filed, and this court said: “Sec. 4329 of the Revised Statutes authorizes a receiver to be appointed in certain cases, when an action is pending or has passed to judgment. An action cannot be pending until it has been commenced. Civil actions in the courts are commenced by filing a complaint. (Rev. Stats., sec. 4138.) Section 4068 of the Revised Statutes is as follows: *427‘An action is commenced when the complaint is filed.’ Section 4139 provides that the clerk must indorse on the complaint the day, month and year that it is filed. The complaint cannot be said to be filed until it is placed in the hands of the clerk, or in his office, for the purpose of receiving the above indorsement. It then becomes the duty of the clerk to make said indorsement thereon. The action is then commenced, is then pending, and the court, or judge, as the case may be, then has jurisdiction of the subject matter, and may deal therewith according to law. The appointment of the receiver on the 18th day of December, 1890, in the cause of Spokane National Bank v. Hussey and Ham, was not within the power of the court, and was therefore void, because there was no suit then pending.”
The majority opinion attempts to distinguish between that case and the one now under consideration by stating that the act under consideration in that case prohibited the appointment until the action is commenced. This distinction is certainly without any difference, and clearly is not supported by the language of the respective statutes. See. 4329 of the Rev. Codes, which authorizes the appointment of a receiver, says: “A receiver may be appointed by the court in which an action is pending or has passed to judgment, or by the judge thereof.” The sections of the statute authorizing the issuing of an injunction say: “The injunction may be granted by the court in W'hich the action is brought, or by the judge thereof”; and see. 4289 says: “The injunction may be granted at the time of issuing the summons, upon the complaint.” If this language does not mean that there must be an action pending, then I am unable to understand what is meant by these two sections of the statute, because if an injunction may be granted in a court in which the action is brought, and can only be granted at the time of issuing the summons, and the summons cannot be issued until the complaint is filed, then there must certainly, under the provisions of the statute, be an action pending, and the reasoning falls clearly within the ease decided above.
I am well aware of the language used by the California supreme court in the case of Heyman v. Landers, 12 Cal. 107, *428cited in the majority opinion, and a perusal of that ease clearly demonstrates to any reasonably thinking person that the court did not consider the provisions to which I have alluded above in secs. 4287 and 4289 of the Rev. Codes of this state, and no system of reasoning or theory can bring that case within such provisions. No other state has ever construed the provisions of a statute such as we have in this state, and the general principles laid down in the text-books, to which reference has been made in the majority opinion, have no application to the provisions of our statute. Neither am I aware of any general practice prevailing in this state of applying to district judges for an injunction, where no cause of action is pending. Even if such practice does prevail, it cannot operate to set aside and repeal the laws of this state. These are clear and specific statutory .provisions, and this court should enforce them, and should not recognize a principle of construction adopted by California which is clearly in violation of our statutes, and I do not believe that California has followed such practice, because the case cited from that state has never been referred to in any subsequent California decisions. To my mind this question is so clear, and the statutes are sq plain which are involved, that it requires no exhaustive discussion of the subject. I therefore dissent from the discussion and the conclusion announced in the majority opinion.