(dissenting). In my opinion the statute under which the defendant’s appeal was taken was not intended to interrupt the usual procedure in equity cases with reference to the hearing and determination of the merits of the controversy; and this seems to me to be the view of the statute taken by the Supreme Court in Ex parte National Enameling & Stamping Co., 201 U. S. 156, 161-162, 26 Sup. Ct. 404, 50 L. Ed. 707, referred to in the opinion. The considerations which govern the granting or refusal of injunctions pendente lite are in many respects different from those which govern the granting or refusal of them on full hearing. It might well happen, for instance, that an injunction not proper as preliminary relief ought to be granted on final hearing. The opinion of my associates is, if I understand it correctly, that the subject-matter covered by an inter*558locutory injunction (if one be granted), or by the motion for it (if the injunction be refused), is, after .an appeal be taken, withdrawn from final action in the trial court until the appeal is determined. This is an innovation in equity procedure, and .one which I think will work badly.
The. general rule on which my associates base their opinion, viz. that the final decree merges all interlocutory ones, was not established with reference to the practice under the statute here in question. Either the efficient procedure for determining the case must be interfered with, or the rule as to merger must be limited; and it seems to me that the rule, which is a mere technicality, is the less important. In, my opinion the appeal from the interlocutory decree kept it from being merged into the final decree, and both appeals are properly before the court;
Moreover, as both parties agree, what has been done in the way of appeal has resulted in all the questions raised by the case being brought before this court in a manner adequate for the decision of them. To dismiss the appeal will be of substantial advantage to nobody except printers and will merely burden the plaintiff with a double bill for printing and with the costs following this dismissal. The case will be reprinted and brought here again on the same record. As the merits of the controversy are fully and fairly presented by the present records, I think the court should take jurisdiction, and that the decision not to do so is unfortunate and unduly exaggerates formality at the expense of substantial justice.