The opinion of the Court was delivered by
Willard, A. J.This was an attachment for contempt against J. Alexander, Mayor of Columbia, and S. Hook, Superintendent of the City Water Works, for an alleged contempt in the violation of an injunction issued by the Circuit Court in the above entitled action, pending in that Court. The parties appeared and answered to the alleged contempt, and a final order was made adjudging both parties defendant in such proceeding guilty of contempt, and imposing fines and costs upon them.
Both parties defendant have appealed from this final order, and the appeal presents several distinct questions that will be considered.
The first point of exception alleges that the rule to show cause “ did not specify, directly or indirectly, any matter wherein it was alleged that they were liable as for a contempt in violating the injunction order of the Judge.” It was not necessary that the matters alleged as the ground of the charge of contempt should appear *401on the face of the rule. The rule was mere process, and was sufficient, if it appeared that the proceeding was one within the jurisdiction of the Court. This exception also states that neither the affidavit nor the petition'upon which the rule was founded was served upon the defendants, Alexander and Hook. A rule to show cause should always be accompanied by a copy of the affidavits and other papers on which it was founded. If the party who should make such service fails to do so, it is ground for the opposite party to apply for time and the service upon him of the papers on which the rule issued. Advantage cannot be taken of such an omission on appeal, as it is, at most, an irregularity not involving the merits or substantial rights of the party affected by it. — Code, § 11, Bub. 8, § 199.
The second exception relates to matters entirely within. the discretion of the Circuit Court. It was due to the parties to have reasonable time to make their defense, and we are bound to assume that in matters of this sort full justice was done to them.
The third exception, namely, that Hook had never been served with the injunction order, appears to be well taken. He so alleges in his return to the rule, and no proof of service of the injunction as to him appears in the proceeding. As to him, therefore, the order of the Circuit Court should be set aside.
The fourth exception is not sustained as it regards the defendant, Alexander. The petition charged, on information and belief, that the gates connecting the works of the plaintiffs with the distributing reservoir were closed by the order of defendant, Alexander, after the injunction was granted. The averments of the petition were sufficiently distinct to put the defendant, Alexander, to his answer, whether the gates had been closed by his order after notice of the injunction order. In his return he fails to deny the facts charged in this respect, and, therefore, the charge stands confessed. The same rule, in this respect, should be applied to petitions and statements of the facts and grounds upon which relief is asked in a special proceeding that is applicable to formal pleadings; and by Section 191 of the Code all material allegations of the complaint not controverted by the answer are to be taken as true.
The proposition advanced by the fifth exception, if to be understood as clearing a party from the charge of contempt, where he has acted under the advice of counsel, is unsound. Such fact may be shown by way of mitigation alone.
*402The proposition set forth in the sixth exception, namely, that in tliis State the Circuit Court cannot enforce their authority by the imposition of fines, if not inconsistent with the nature of the authority exercised by the Courts, is at all events inconsistent with the provisions of the statute regulating the practice of the Circuit Court. — 14 Stat., 136, § 1 ; Gen. Stat., 497, § 4.
The seventh exception is well taken. There is no authority conferred by the Code to tax as costs in a special proceeding the allowances as costs in an action. It appears on the record that this was done, and although the attention of the Circuit Judge does not appear to have been called to the point, yet, occurring in a final order, we are bound to notice it as an erroneous construction of the law governing costs.
The order contained in the concluding paragraph of this final order appealed from, and which directed the parties to deliver up certain keys, was not in conformity to the nature of the proceedings. No such order was contained in the original injunction order. Had it appeared that, subsequent to the service of the injunction order, the defendants had possessed themselves of the keys in question, in violation of that order, a compulsory restitution would have been appropriate. But we must conclude that at the service of the injunction the keys were in the possession of the defendants. It is not the province of a preliminary injunction to compel the transfer of property of any kind from one party to another. The party asking for an injunction is assumed to be in possession of the property in respect of which he demands protection, and all the injunction can require on the part of the opposite party is that he should forbear from interfering with that possession. He cannot be required to perform any act Avhatever. If the plaintiff cannot enjoy his rights without compelling the defendants to perform some act, he must wait until he has established them by his judgment.
It is ordered and adjudged that so much of the final order appealed from as adjudges the defendant, S. Hook, guilty of a contempt, and awards damages and costs against him, be reversed and set aside, and that the proceedings as against said defendant be dismissed. It is further ordered and adjudged that so much of said order as fixes the costs and expenses of the proceeding at the sum of eighty-seven dollars and twenty-five cents be vacated and set aside; and that so much of said order as directs “that the said *403keys of the water pipe gates be delivered to S. P'earce, Jr., agent and clerk of the plaintiffs,” be vacated and set aside, and that the case be remanded to the Circuit Court.
Moses, C. J., and Wright, A. J., concurred.