TEXAS TRACTION CO. v. BARRON G. COLLIER, Inc., 195 F. 65

SHERBY, Circuit Judge. This is an appeal from an order granting an injunction pendente lite. Formerly, the granting of such order was in the absolute discretion of the primary court; no appeal being allowed. The Act of March 3, 1891, allows an appeal from such decree. 26 Stat. 826.

Since this act was passed, its uniform construction has been that the granting of an injunction pending the suit is in the sound discretion of the trial court, and that its order will not be disturbed on appeal unless it is violative of the rules of equity, or unless, there has been an abuse of discretion, or unless the injunction has been improvidently allowed.

The appellate court is not to decide as to what it would «have done as to allowing the injunction, but it must recognize that the law has imposed on the primary court the responsibility of the exercise of this power, and unless there has been a plain disregard of the law or of some settled rule of equity which should govern the issuance of injunctions so that it appears clearly that the injunction is issued improvidently, the decree should not be reversed. Kerr v. City of New Orleans, 126 Fed. 920, 924, 61 C. C. A. 450; Lehman v. Graham, 135 Fed. 39, 67 C. C. A. 513; Massie v. Buck, 128 Fed. 27, 62 C. C.

A. 535; Clark v. McGhee, 87 Fed. 789, 31 C. C. A. 321; Love v. Atchison, T. & S. F. Ry. Co., 185 Fed. 321, 107 C. C. A. 403. Where the equity of the bill is challenged and the appellate court is of the opinion that the bill is without equity, the decree would be reversed, with directions to dismiss the bill (Smith v. Vulcan Iron Works, 165 U. S. 518, 17 Sup. Ct. 407, 41 L. Ed. 810); and the same result would follow if it appeared that the lower court was without jurisdiction (Arkansas Southeastern R. Co. v. Union Sawmill Co., 154 Fed. 304, 83 C. C. A. 224).

In a case like the one at bar, dependent on controverted facts, it was not intended that the discretion of the primary court was to be interfered with on appeal and the case finally disposed of on ex parte affidavits. Affirmed.