KING LUMBER CO. et al. v. BENTON et al., 186 F. 458

SHELBY, Circuit Judge. This is a bill filed by C. A. Benton and S. S. Freedman, and the city of Corsicana, a municipal corporation of the state of Texas, complainants, against the King Lumber Company, a Virginia corporation, and G. W. North, defendants. There are no other parties to the bill by intervention or otherwise. The court below made an order granting an injunction pendente lite, and the defendants have appealed.

It appears affirmatively that the affidavits and documentary evidence that was before the lower court are not in the record, but an agreement of counsel is substituted “for the purpose of shortening the record.” This agreement was made for the purposes of this appeal after the decree was rendered below, and it does not appear that it was submitted to or recognized by the trial judge as embodying all of the evidence or the ultimate facts of the case. .The suit is one to enjoin the closing of an alley.

On the pivotal point in the case, the agreement shows: “That tho testimony of plaintiffs tended to show the existence of the alley as claimed, and the testimony of defendants tended to show there was no such alley.” When the record does not show the contrary, it is presumed that the evidence was sufficient to justify the decree appealed from. This court, as we have repeatedly held, is reluctant to interfere with the discretion of the Circuit Court in granting interlocutory injunctions, and will only do so when it is apparent that the order has been improvidently made. Kerr v.

City of New Orleans, 126 Fed. 920, 61 C. C. A. 450. When issues are joined raising grave questions of law which the court must decide before rendering a final decree, it is within sound judicial discretion to preserve the existing status till the case is finally decided. City of Newton v. Levis, 79 Fed. 715, 25 C. C. A. 161; Massie v. Buck, 128 Fed. 27, 62 C. C. A. 535. We are of opinion that there is nothing in the record before us to show- that the lower court improvidently exercised its discretion in maintaining by injunction the Conditions that existed when the bill was filed.

If the rules are complied with, the evidence may be soon taken and the case tried, and the court may then determine by final decree the issues made by the bill and the answers. We are of opinion that the decree appealed from should be amended by striking out the mandatory part of- the injunction, and letting it stand as an order maintaining the conditions that existed when it was granted.

The part of the order stricken out by amendment is as follows : “And commanding and requiring them and each of them forthwith to remove the coping and permanent obstructions which they have placed and constructed across said alley at the point of its intersection with said Sixth avenue, so that there shall remain no obstruction placed by said defendants preventing free egress and Ingress out of and into said alley from and to the said Sixth avenue.” As so amended, the order is: Affirmed.