(dissenting.) According to the opinion of the court, although a plaintiff’s papers are so insufficient on their face or so false in their allegations that, if he should apply on notice for an *372injunction, any court would, on a bearing, promptly refuse to grant one, yet, if he can find anywhere in the state a judge or court commissioner who will improvidently grant one ex parte, which the court on the first and only hearing ever had dissolves, he can by appealing and filing a bond make the ex parte injunction impervious to all judicial interference until the appeal is determined in this court. I cannot believe that the statute was ever intended to thus permit the trial court to be deprived of its discretion, (which is really never exercised at all until the hearing on the motion to dissolve,) and the opposite party to be thus tricked out of his rights without a hearing, leaving him no redress except an action on the supersedeas bond for damages, which are often incapable of measurement. Such a result is so unjust, and so utterly inconsistent with all known rules of equity practice, that no court should adopt such a construction unless absolutely shut up to it by the clear and unequivocal language of the statute. Considering the nature and office of an injunction pendente lite, and the former equity rules on the subject, I think it may well admit of doubt whether the phrase, “and save all rights affected thereby,” was intended in any case to have the effect of reviving or continuing in force an injunction after an order dissolving it. But, however that may be, I am of opinion that an ex parte injunction, in whatever form and however worded, does not differ in character or legal status from a temporary restraining order, such as was issued in Sullivan v. Weibeler, supra, expressly conditioned to continue only until otherwise ordered by the court, or until a hearing can be had. No court ever held that an ex parte injunction could be issued without an implied right of the opposite party to a review upon a hearing upon counter-affidavits or otherwise. In the case of a temporary restraining order, the express reservation of control over it or limitation upon its duration is no more unmistakable than that which is implied in the case of an ex parte injunction from its very nature and purpose. The hearing upon the motion to dissolve an ex parte injunction is the first hearing ever had in the matter, and, while the order made may be in form one dissolving, it is essentially one refusing to grant, an injunction, and the legal status of the matter is, in effect, the same. I do not think that this view is assum*373ing any unwarranted liberty with the language of the statute. Nothing is more common in the construction of statutes than, under certain circumstances, to ingraft upon general language implied limitations and exceptions. We have a notable instance of this in our construction of this very statute relating to appeals. The general doctrine of this court is that no appeal will lie directly from orders or judgments made or rendered ex parte or on default, but that a party must first apply to the district court for relief. No such limitation or exception is to be found in the language of the statute, but is implied on the common-sense idea that it could not have been intended to grant a right of appeal on a matter upon which there never has been a hearing, and upon which the court below has never in fact exercised its judgment.
I am authorized to say that Justice Collins concurs with me in these views, and joins in this dissent.