On Petition for Rehearing.
GRIMSON, Judge.The defendants filed a petition for rehearing claiming that the trial court had had no authority tor issue the preliminary injunction because the defendants were -in possession of the land involved under a claim of ownership; that an injunction could not be substituted for an action at law for possession of real property and that the plaintiff instead of suffering an irreparable injury received a benefit from the defendants’ farming the land in 1953.
This is an action to quiet title in the plaintiff and for an injunction and an accounting. A temporary restraining order was issued on the filing of the complaint. A temporary injunction may be issued by the court in its discretion at the commencement of an action if by the pleadings and supporting affidavits the court deems sufficient grounds exist therefor. Sec. 32-0603, NDRC 1943. “This provision vests in the trial court the discretion to determine in the first instance whether a temporary injunction shall be granted * •* Gillies v. Radke, 78 N.D. 974, 985, 54 N.W.2d 155 162. See also Donovan v. Allert, 11 N.D. 289, 297, 91 N.W. 441, 58 L.R.A. 775; Sand v. Peterson, 30 N.D. 171, 176, 152 N.W. 271; 43 C.J.S., Injunctions, § 14, p. 420. An order to show cause including a restraining order may be issued if it is “shown in the moving papers that there exists such an exigency or occasion as requires- the immediate issuance of an order so that the rights of the parties may be preserved.” 32-0607, NDRC 1943. The purpose of such restraining order is to keep matters in status quo until a determination is made whether a temporary injunction should issue.
“A temporary restraining order, while in effect a species of injunction, is in some respect to be distinguished therefrom. It is an interlocutory order or writ issued by the court upon an application for an injunction, and is intended as a restraint on the defendant until the propriety of granting a preliminary injunction can be determined, thus going no further in its operation than to preserve the status quo until that determination. When that determination is made, the whole force of the-temporary restraining order, ceases by its own limitations.” 28 Am.Jur. Sec. 11, p. 203, See also 43 C.J.S., Injunctions, § 8, p. 415.
In the case at'bar statements were made in the complaint and affidavits that the plaintiff was the owner of the land involved; that the defendants were trespassing upon said land; that they had illegally removed the 1952 crops off the premises and a portion, of the buildings; that they were by force keeping the plaintiff’s tenant, who was ready to go on and farm the premises in 1953, off the land; that this could cause the plaintiff irreparable injury for which she had no adequate remedy at law. These allegations would seem to raise an exigency justifying the district court in the exercise of its discretion to issue its order on April 4, 1953, to the defendants to show cause on May 8, 1953,
*750why the temporary injunction should not he granted and to determine the propriety thereof, restraining the defendants in the meantime from interfering with plaintiff’s possession so as to preserve the status quo until such hearing.
“It is not necessary that the complainant’s rights be clearly established, or that the court find complainant is entitled to prevail on the final hearing. It is sufficient if it appears that there is a real and substantial question between the parties, proper to be investigated in a court of equity, and in order to prevent irremedial injury to the complainant, before his claims can be investigated, it is necessary to prohibit any change in the conditions and relations of the property and of the parties during the litigation.” Goldfield Consolidated Mines Co. v. Goldfield Miners’ Union No. 220, C.C., 159 F. 500, 511.
When an injunction is granted without notice the defendant may at any time before trial apply to the court to vacate or modify the same. Sec. 32-0609, NDRC 1943.
In the case at bar, the defendants, on April 6, 1953, were served with the restraining order and accompanying papers. On April 16, 1953, the defendants answered on the merits claiming ownership of the premises and asked that the title thereto be quieted in them and that “the complaint be dismissed and that plaintiff take nothing.” No motion was made that the temporary restraining order be dissolved. On April 24, 1953, an affidavit of prejudice was filed against Judge Wigen. On May 1 Judge Amundson was designated by the supreme court to hear the case. On May 2, 1953, the defendants, Dan and John Gunsch, filed their return to the order to show cause making reference to and incorporating their answer therein. No request was made.for.a dissolution of the temporary - restraining order. On May 6, 1953, Judge Amundson set a new hearing on the order to show cause and. restraining order for May. 18, 1953. On May 13, 1953, plaintiff filed a reply to defendant’s counterclaim making general denial and specific denial of defendant’s ownership of the land in question. . On May 18, the defendants filed “return to application for temporary injunction,” praying that it be denied and plaintiff granted no temporary relief whatsoever. Both parties filed further affidavits in support of their claims. There is no, record, however, of any hearing being had on May 18, 1953, or of any order having been entered in the matter and certainly no appeal was taken from any action of the court on that order to show cause.
In the case of Gillies v. Radke, 78 N.D. 974, 54 N.W.2d 155, the situation was somewhat similar to the one at bar except that the claims of the defendants were stronger. The plaintiff obtained a deed to the premises. Defendants had been leasing the land for some years past and were lawfully in possession. The plaintiff brought suit for an injunction to restrain the defendants from interfering with the plaintiff’s possession under his deed alleging the defendants were trespassers. The court forthwith granted a preliminary injunction .restraining the defendants from interfering with plaintiff’s ' use and occupancy of the premises and directed the defendants to show cause why such an order should not be continued until final judgment. The plaintiffs went into possession. The defendants claimed to have a right to possession of the premises under a lease with an option to buy which they claimed to have exercised. A hearing on the order to show cause was had upon which the court continued the temporary injunction. No appeal was taken from that order. The court says:
“It may be as the defendants contend that the trial court improvidently issued the temporary injunction and that instead of preserving the status quo it disturbed it by placing the plaintiffs in possession of the land. However, both the original issuance of the injunction and its subsequent continua- ■ .tion at the close of the hearing of May *75110 were orders issued by a court that had jurisdiction of both the subject • matter and the parties. No appeal was taken from the order continuing the injunction, as might have been done under the provisions of Section 28-2702, NDRC 1943. * * *”
The defendants in the instant case did not have to wait until May 18th. They could have made a motion at once to dissolve the preliminary restraining order. They did not do that. In 43 C.J.S., Injunctions, § 247, p. 986, it is said: “A formal motion to dissolve ordinarily is necessary, unless the answer contains a prayer for dissolution.” In Manhatten Mfg. & Fertilizing Co. v. Van Keuren, 23 N.J.Eq. 251, the court holds that:
“The existing injunction can be removed only upon notice and motion to dissolve. Without such notice and motion I shall not assume to consider the propriety of its continuance.”
In the instant case the defendants made no motion to dissolve the restraining order or to force a decision so that an appeal could be taken on the propriety thereof.
It is clear that if there was any question about the propriety of the trial court issuing the temporary restraining order that was waived by the failure of the defendants to move that it be quashed, Sec. 32-0609, NDRC 1943, and by the failure to insist on a dissolution upon the hearing set for May 18, and finally by the submission of the whole matter for trial on the merits.
In the petition for a rehearing the defendants further contend that the court had no jurisdiction in the contempt proceedings because of irregular procedure and the invalidity of the temporary injunction.
On May 28 plaintiff made application for an order to show cause why the defendants should not be punished for contempt of court, setting forth the violation of the restraining order issued by Judge Wigen on April 4, and filed affidavits in support thereof. On June 1 Judge Wigen issued an order to show cause on June 10 why defendants should not be punished for contempt of court for failing to obey such restraining order. On June 8 plaintiff filed an affidavit of prejudice against Judge Wigen in the contempt matter and on June 12 Judge Amundson was designated in his place. On July 21, 1953, Judge Amundson issued an order to show cause on July 22 why the defendants should not be punished for contempt. On July 23, defendants filed a “return to injunction and contempt” in which they admit farming the land but claim they did so on advice of their counsel to the effect that the injunctional order was void. Thereafter it was stipulated that the contempt proceedings be submitted on the evidence received in the joint trial of six related cases then pending. Upon the evidence so received the trial court issued the final injunction prayed for, appointed a receiver and found the defendants guilty of contempt.
The procedure for the contempt proceedings was in accordance with the statute. The court may punish as for civil contempt any person guilty of violation of an order by which the pending proceedings may be impaired. 27-1003, NDRC 1943. The procedure was in accordance with subdivision 1, Sec. 27-1007, NDRC 1943, by the issuance of an order to show cause.
Instead of bringing the contempt matter on for hearing the defendants, claiming the advice of counsel, proceeded contemptuously to do the things they had been enjoined from doing.
As already stated, the restraining order was not void. We have also held that even if its issue were irregular it had to be obeyed until it was vacated by the court.
In Glein v. Miller, 45 N.D. 1, 176 N.W. 113, 115, we said:
“To hold that an order improvidently issued can be violated with impunity is to invite litigants to resort to the use of force sufficient to maintain their rights as they understand them -to be. Such a policy should not be adopted in *752the system of law that prides itself upon having a remedy for every wrong.”
In State v. Markuson, 7 N.D. 155, 73 N.W. 82, this court held: “An injunc-tional order in an equity case, pendente lite, issued by a court having full equity powers and complete jurisdiction of the subject-matter, must be obeyed while it remains in force, however irregularly or erroneously it may have been issued.” In State v. Simpson, 78 N.D. 360, 366, 49 N.W. 2d 777, 783, we said: “The defendant is given the right to move for the vacation of an injunction at any time, but until he does so, and the court finally grants his application the injunction prevails and a violation thereof would constitute contempt of court.” See also Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 12 A.L.R.2d 1051.
We find the proceeding initiating the contempt regular and the preliminary restraining order the defendants were charged with violating valid. We adhere to our original decision.
The petition for a rehearing is denied.
BURKE, C. J., and JOHNSON, SATHRE and MORRIS, concur.