This is an appeal from an order dissolving an injunction. The injunction was granted ex parte and out of court., and was dissolved by the judge who made the order for the injunction, without notice, on motion of the defendant, and on such motions affidavits on the part of the defendant were read.
The new affidavits tended to show that the sewer no longer constituted a nuisance, and there was urgent necessity for the immediate dissolution of the injunction to prevent great and irreparable loss to defendant.
It was also shown .that the .security .was insufficient.
, The transcript contains no certificate of the judge or clerk identifying the affidavits as those which were used on the hearing of the motion to dissolve.
*275• The first order granting the injunction recites that it was made on the complaint and an affidavit. The motion to dissolve was based upon these papers as well as the new affidavits.
Unless we are prepared to overrule Nash v. Harris, 57 Cal. 243, and Baker v. Snyder, 58 Cal. 617, we cannot look at these affidavits, and cannot know that the dissolution was not granted for insufficiency of the papers upon which it was originally granted.
But if the affidavits were properly authenticated, I still think the order should be affirmed. It is said that section 937, Code of Civil Procedure, cannot apply to injunctions, because section 532 is a special provision covering that subject; and that even if section 937 does include injunction orders, still they are in pari materia, and no new affidavits can be read on such ex parte application, because in section 532 it is provided that if affidavits are used by the defendant, the plaintiff may read additional affidavits in support of his original showing. It is not necessary to give the statute this construction. Section 532 merely prescribes the practice when the dissolution is asked on notice, and a contest is inaugurated, and ex vi termini cannot apply to a motion which is ex parte. There is no inconsistency in the two modes of procedure, and the effect of dissolving or refusing to dissolve, with notice or without, are quite different. Where notice is given, the matter is no longer in the discretion of the court, but is final until the trial.
The only question really is, whether section 937 applies to orders for injunctions at all, for if it does, this court cannot, under pretense of construing the statute, restrict its operation. If an ex parte application may be made to dissolve, and the grounds upon which such application may be made are not limited by the statute, it would follow, as a matter of course, that such application may be based upon any matter which would justify its dissolution.
*276But this is not an open question in this state. In Fremont v. Merced Mining Co., 9 Cal. 19, it was expressly held that a motion to dissolve an injunction granted ex parte could be made by the defendant without notice. The court refers to section 334 of the Practice Act, which corresponds to section 937 of the Code of Civil Procedure, and held that it justified the action of the court below. The report of that case is not very full, but evidently the application to dissolve was based on affidavits.
The same ruling was made in Thornton v. Borland, 12 Cal. 440. The learned judge approves the practice only when from the urgency of the case it was necessary to guard against serious loss, which sometimes might be occasioned by the delay incident to giving notice. Of course, urgency which would render notice impracticable could only be made to appear by an affirmative showing.
This practice has, I believe, always prevailed in this state, as also in the state of New York, from which we have taken these two sections of the Practice Act.
The court in the last case very properly suggests that the judge should require notice where it is practicable. And the same discretion should be exercised upon making the order for injunction in the first instance.
I have never heard this practice called in question until now, and there can be no doubt whatever that the rule which has heretofore prevailed is much the most beneficial and reasonable. I cannot even imagine a plausible objection to it on the score of expediency. The facts in the case at bar well illustrate its usefulness and necessity.
The defendant keeps a hotel, having about 150 boarders, and discharging about three thousand gallons of sewage per day. The alleged nuisance was caused by a leak in the sewer near the residence of plaintiff, and from the fact that the sewer does not extend quite far enough into tidewater. From the moving papers themselves, it appears *277that the sewer could, by a little alteration, be used without creating a nuisance. It appears that the stoppage of the sewer for a very short time would create at the hotel an intolerable nuisance. It was shown on the motion to dissolve that the leak no longer existed, and that the sewer was extended into the sea. Of course we must suppose that the judge was completely satisfied on these points, and that this claim that the nuisance no longer existed is absolutely true beyond doubt.
The injunction ought not, in the first instance, to have prohibited the use of the sewer absolutely; but only while such use would create a nuisance. But it did prohibit its use altogether.
An attorney may practice law in every county in the state. How long it would have been required to give notice in this case does not appear. The attorney probably resided at San Diego. This the judge could best determine. Had he been a resident of a distant county, as we may suppose he was, to test the rule, notice could not have been given under several days, even if the time had been shortened by the judge.
Under such circumstances, must the court permit the defendant’s business and property to be entirely ruined by the delay, in the face of conclusive proof that the dissolution of the injunction could not possibly injure any one?
The rule which has heretofore prevailed in this state, and which still obtains in other states, is, no doubt, to some extent an innovation upon the rule formerly enforced by courts of chancery. But it should be remembered that the use of the writ of injunction as a preventive writ has been greatly extended. Formerly chancellors were reluctant to grant the writ, except in very few cases.
Rules which were sufficient for the purposes of justice, under such practice, would be plainly inadequate now, *278when any business may be unjustly interrupted by a false ex parte showing of some adversary.
I think the judge properly exercised his discretion in dissolving the injunction, and that the order ought to be affirmed.