On Petition for Hehearing (Filed April 10, 1915).
F. E. Fisk, District Judge.Appellant has filed a petition for rehearing, in which he complains, first, that questions decisive of the case and duly submitted by counsel have been overlooked by the court; and, second, the decision is in conflict with controlling decisions to which the attention of the court was not called, neither in the briefs nor oral argument, and which decisions have been overlooked by the court.
*179Counsel cites the case of Bissel v. Olson, 26 N. D. 60, 143 N. W. 341, as being a case overlooked and an authority in his favor. We cannot construe that case as an authority for appellant herein. We consider it quite in line with our holding in this case wherein we stated as follows: “The granting 'or refusal of a temporary injunction is a matter largely in the discretion of the trial court, and its order will not be disturbed except in case of a clear abuse of discretion.”
The following language is found in the case of Bissel v. Olson: “This appeal was only argued for plaintiff by counsel appearing amicus curice; and he submits no extended brief on the merits, but seems to rest his contention upon the lower court, having exercised its discretion in granting this temporary restraining order, which also commands the destruction of the bridge. We should be disposed to go some ways to sustain the action of the lower court in a matter largely within its discretion, had it not entered a mandatory order destroying the property of the defendant before the trial of the action upon the merits, or in case of grave doubt on the showing made. ... It should be a strong case which warrants the trial court in granting a mandatory injunctional order for the destruction of property, pending the trial of an action upon its merits.”
In the present action the defendants claim to be duly elected public officers, and claim, further, that they were doing nothing outside of the duties imposed upon them by virtue of their offices which they claim to hold, and claim that the plaintiff is attempting to prevent them from so doing, and the lower court refused to grant a temporary injunction to restrain them pending the hearing of the action upon the merits. It is a well-settled rule that the interests of the public axe to be taken into consideration by the court in the granting or refusal of a temporary injunction; and when the issuance of an injunction will cause serious public inconvenience or loss without a correspondingly great advantage to the complainant, no injunction will be granted; and counsel is in error when he says that this case does not come within the general rules as announced in the opinion relative to the granting or refusal of temporary injunctions and the wide latitude and discretion of the trial courts in such matters.
Counsel says that the case of Marks v. Weinstock, 121 Cal. 53, 53 Pac. 362, does not support the rule announced just preceding such cita*180tion in the main opinion, and in this counsel is correct. This citation was inadvertently placed improperly in the opinion, and should have followed the citation of 22 Cyc. 748 as supporting the rule announced just preceding such citation, and the opinion in the case will be corrected to the extent of placing this citation at such place. There are, however, many California decisipns which support the rule announced as follows: “Upon the hearing of an application for a temporary injunction the rule appears to be that where the allegations or equities of the complaint are positively denied by answer or other proof on the part of the defense, the court will ordinarily deny the temporary injunction,” such authorities being found in 22 Cyc. 987.
Counsel says in his petition that there are exceptions to this rule, and cites a number of cases in support of such exceptions. We do not claim that there are not exceptions to the general rule as announced, and this only goes to show that the discretion granted the trial courts in granting or refusing temporary injunctions where the relief sought is preventive, is a wide discretion, and that in some cases, where the averments of the complaint are positively denied by the answer, courts have granted the temporary injunction, and it has been held to be no abuse of discretion; on the other hand, a large number of cases will be found, following the general rule announced in the main opinion.
Counsel suggests a modification of the opinion, claiming it is a little misleading as to the facts, though not material to affect the final result, by reason of the fact that in the main opinion we proceeded upon the theory that no temporary injunction was granted. Counsel all the way through this case, in his briefs and petition for rehearing, has proceeded upon the theory that a temporary injunction was in fact issued, and, while we thought of calling his attention to this in the main opinion, we did not do so, as we deemed it unnecessary to any material question to be decided. We, however, cannot construe the order made by the district court as a temporary injunction.
At the commencement of this litigation there was presented to the district judge the verified complaint and an affidavit upon which was issued by the court an order. This order is directed to the defendants, and orders them, until the further direction of said court, to desist and refrain from doing the acts complained of, and further orders that on the 8th day of April, 1913, at 10 o’clock in the forenoon, they show *181cause before the court why said order and injunction should not continue and be in force until the final determination of the suit on the merits. This order was dated the 14th day of March, 1913. Upon the hearing of this order to show cause, the order complained of, and from which this appeal was taken, was made, and while it is labeled, “Order vacating injunction,” in legal effect it amounts to nothing more nor less than an order denying a temporary injunction and vacating the temporary restraining order. If the order issued in the first place had been a temporary injunction issued without notice, the same would have enjoined the defendants from doing any of the acts complained of until the final determination of the action upon the merits, and would not have cited them to show cause some three weeks later why the same should not be continued in force until the final determination of the action upon the merits. See State ex rel. Plattsmouth Teleph. Co. v. Baker, 88 N. W. 124, and 22 Cyc. 745, 746.
From the very reading of the order issued in the first instance, it is apparent that the district court intended to give the defendants an opportunity to be heard before making an injunctional order effective throughout the entire litigation, because the reading of the order requires defendants to show cause, if any they have, why they should not be restrained by the continuing of said order in force until the determination of the action upon the merits, and this in legal effect was nothing more than a temporary restraining order upon an order to show cause under § 7533, Comp. Laws 1913.
Again, counsel criticizes the language used, which he says nearly amounts to a holding that when this action comes on for trial on the merits the plaintiff would be estopped as was the plaintiff in the case of Greenfield School Dist. v. Hannaford Special School Dist. 20 N. D. 394, 127 N. W. 499. The questions which we decided in the opinion in this case are contained in the syllabus, and what was said in regard to the question of estoppel, and the question of the regularity of the proceedings was said not as deciding this case upon the merits or of going into the merits of it, which we expressly declined to do at the outset of the opinion, but was only said as illustrative of the various phases which the trial court may have had in mind in passing upon the question of whether or not a temporary injunction should issue pendente lite, and in using his discretion in making the order complained of.
*182Counsel also states that in this action “the injury is pressing and the delay dangerous.” We do not know what condition the calendar of the district court of- Adams county is in, but it is more than two years since this action was commenced, and the law provides for two terms of court a year in Adams county; and it seems to us that there certainly must have been an opportunity for counsel to have had this case tried on the merits during the past two years, had the injury been as pressing and the delay as dangerous as he would now have us believe.
The petition for rehearing is denied.