On Petition for a Rehearing.
Elliott, C. J.In. their argument on the petition ‘for a rehearing, counsel assert that we misapprehended their position, and that they did not maintain that an appeal rendered an order of injunction ineffective. We have again carefully studied their original brief, and find that the main part of their argument was that the appeal prevented the court which issued the order from enforcing obedience to it by an attachment for contempt. We still think that this Avas substantially their position, although it is perhaps true, that in 'the statement of the question there was some difference in the phraseology. We are, at all events, clearly of the opinion that the question as to the effect of the appeal was the prin*206cipal question involved, and was the question principally discussed.
We held in our former opinion, and supported our conclusion by many authorities, that the appeal did not impair the-force and effect of the injunction, and to that conclusion we unhesitatingly adhere.
It is further argued, that the case, in which the order of injunction was granted, was for the recovery of real estate,, and that in such a case an order of injunction could not issue. But if counsel were right in this position, it would not avail, them in this collateral proceeding, for there was unquestionably jurisdiction of the subject and of the person, and amereerror in granting the relief could not be made available except by a direct attack. It certainly is not the law that an order of injunction, granted in a case where jurisdiction exists, may be disobeyed, and its validity brought in question in proceedings on an attachment for contempt. Counsel are, however, in error in assuming that a final order of injunction-may not issue, prohibiting the disturbance of the plaintiff’s possession, for it is in the power of our courts, exercising both common law and chancery jurisdiction, to grant such relief. In this instance, the appellants’ counsel are also mistaken in assuming that the complaint in the original action was purely in ejectment, for the second paragraph states facts entitling the plaintiff to an injunction, and explicitly prays that relief.
The only error properly assigned in this court is, that “ The circuit court erred in overruling the appellants’ motion for a new trial,” for the specification that “ The circuit court erred in adjudging the appellants, and each of them, guilty of contempt,” presents no question for our consideration. The question under the only proper specification of error assigned requires for its just consideration that all the evidence should be in the record, for, without the evidence, it can not be adjudged that the finding of the trial court was wrong. It has long been the rule in this court, that the bill of exceptions in *207such a case must affirmatively show that it contains all the-evidence given in the cause. This, as has been many times decided, is indispensably necessary. Rader v. Barr, 7 Ind. 194; Jarvis v. Strong, 8 Ind. 284; McKinsey v. Bowman, 58 Ind. 88; Gale v. Parks, 58 Ind. 117; Johnson v. Wiley, 74 Ind. 233.
We did not in our former opinion go very fully into the' evidence, because we thought the evidence was not properly in the record. The statement in the bill of exceptions is this : “And the defendants pray the court to sign and seal this,, their bill of exceptions, containing all the testimony offered in evidence, offered on the trial of this cause.” We have copied literally the statement of the bill, not correcting the apparent error in it, and it is clear that it is insufficient, for it has often been decided that the word “ testimony ” is not synonymous with “ evidence,” and that the bill must show that it embodies all the evidence given. Garrison v. State, ante, p. 145, and cases cited; Downs v. Downs, 17 Ind. 95; Gazette Printing Co. v. Morss, 60 Ind. 153; McDonald v. Elfes, 61 Ind. 279; Sessengut v. Posey, 67 Ind. 408; Brickley v. Weghorn, 71 Ind. 497.
We may, perhaps, have gone further into the case than we need have done in the condition of the record, but we thought' it not improper to decide that the appellants had no right to-actively use and maintain telephone poles and wires which they were enjoined from keeping and maintaining, notwithstanding the appeal from the judgment and decree awarding, the injunction.
Petition overruled.
Filed May 12, 1887.