On Petition for a Rehearing.
Worden, J.A petition for a rehearing has been filed in this case, but, upon a reconsideration of the questions involved, we deem it unnecessary to add anything to what was said in the original opinion upon the main point in the case.
But the counsel for the appellant ask us to formally pass upon the motion to dissolve and set aside the restraining order which was issued by this court in the cause, and we proceed to do so.
A majority of the court are of opinion that the restraining order was properly issued, and there is, of course, no ground for setting it aside, as it has performed its functions and oeases with the final decision of the cause.
*579If we are not entirely wrong upon the main point in the case, Leech the appellant was entitled to the office, but by the judgment below he was ousted from it, and another person was adjudged to be entitled to it. The error was apparent on the face of the record. The restraining order operated to hold things in statu quo, as if the judgment had not been rendered, until the decision of the cause in this court.
The Code of 1852, section 136, provides that “ Restraining orders and injunctions may be granted by the Supreme Court in term time, when necessary and proper for the due exercise of the jurisdiction and powers of such court, or by any judge thereof in vacation,” etc. Sec. 1147, R. S. 1881.
This statute we construe to mean that restraining orders, etc., may be issued by this court, or by any judge thereof in vacation, whenever it may be necessary and proper, in the exercise of its appellate jurisdiction, to preserve the rights of parties to a cause pending before it, until the decision of the cause by this court. The case before us is one in which it was, in our opinion, necessary and proper to issue such restraining order.
In many cases in this court, restraining orders have been issued to prevent advantage being taken of a judgment below until the determination of the cause here; though the reports may not show them, because in the opinions pronounced no notice has been taken of them.
The petition for a rehearing is overruled.