action or not, the time within which such timber or trees may be cut or removed by the party claiming the same, and all other rights acquired in connection therewith, shall not be affected or abridged, but the running of the term shall be suspended during the pendency 'of such action.

1901, c. 666, s. 1; 1903, c. 642.

809. When timber may be cut. Whenever in any such action the judge shall find as a fact that the contention of either party thereto is not in good faith and is not based upon evidence constituting a prima facie title, then upon motion of the other party thereto, who may satisfy the court of the bona fides of his contention and who may produce evidence showing a prima facie title, the court may allow such party to cut the said timber trees by giving bond as now required by law. Nothing in this section shall affect the right of appeal as now allowed by law, and whenever any party to such action may be enjoined, a sufficient bond shall be required to cover all damages that may accrue to the party enjoined by reason of the injunction as now required by law.

1901, c. 666, ss. 2, 3.

810. Time of issuing; copy of affidavit served. The injunction may be granted at the time of commencing the action, or at any time afterwards, before judgment, upon its appearing satisfactorily to the judge, by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor. A copy of the affidavit must

be served with the injunction.

Code, s. 339; C. C. P., s. 190.

811. Not issued for more than twenty days without notice; continues until dissolved. No restraining order, or order to stay proceedings for a longer time than twenty days, shall be granted by a judge out of court, except upon due notice to the adverse party; but the said order shall continue and remain in force until vacated after notice, to be fixed by the court, of not less than two nor more than ten days.

Code, s. 346; C. C. P., s. 345; 1905, c. 26.

812. Issued after answer, only on notice. An injunction shall not be allowed after the defendant shall have answered, unless upon notice, or upon an order to show cause; but in such case the defendant may be restrained until the decision of the judge granting or refusing the injunction.

Code, s. 340; C. C. P., s. 191.

Note. For statute regulating notice, see ss. 876, 877.

813. Order to show cause; restraint in meantime. If the judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defendant may, in the meantime, be restrained.

Code, s. 342; C. C. P., s. 193.

814. What judges have jurisdiction. The judges of the superior court shall have jurisdiction to grant injunctions and issue restraining orders in all civil actions and proceedings which are authorized by law: Provided, that a judge holding a special term in any county may grant an injunction, or issue a restraining order, returnable before himself, in any case which he may have jurisdiction to hear and determine under the commission issued to him, and the same shall be returnable as directed by the judge in the order.

Code, s. 335; 1876-7, c. 223, ss. 1, 2; 1879, c. 63, ss. 1, 3.

815. Before what judge returnable. All restraining orders and injunctions granted by any of the judges of the superior court, except a judge holding a special term in any county, shall be made returnable before the resident judge of the district, or the judge assigned to the district, or holding by exchange the courts of the district where the civil action or special proceeding is depending, within twenty days from date of order. And if the judge before whom the same is returned shall, from sickness, inability, or from any cause, fail to hear said motion and application, or to continue the same to some other time and place, then it shall be competent for any judge resident in some adjoining district, or a judge assigned to hold the court of some adjoining district, or the judge holding by exchange the court of some adjoining district, to hear and determine the said motion and application, after giving ten days' notice to the parties interested in the application or motion, upon its being satisfactorily shown to him by affidavit or otherwise that the judge before whom the same was returnable failed to act upon the same, or to continue the same to some other time and place. The effect of such removal shall be to continue in force the motion and application theretofore granted, till the same can be heard and determined by the judge having jurisdiction of the same.

Code, s. 336; 1876, c. 223, s. 2; 1879, c. 63, ss. 2, 3; 1881, c. 51.

816. Stipulation as to judge to hear. By a stipulation in writing, signed by all the parties to an application for an injunction order, or their attorney, to the effect that the matter may be heard before any judge, to be designated in such stipulation, the judge

before whom the restraining order is returnable by law, or who is by law the judge to hear the motion for an injunction order, shall, upon receipt of such stipulation forward the same and all the papers to the judge designated in the stipulation, whose duty it shall thereupon be to hear and decide the matter, and return all the papers to the court out of which they issued, the necessary postage or expressage money to be furnished to the judge.

Code, s. 337; 1883, c. 33.

817. Undertaking. Upon granting a restraining order or an order for an injunction, the judge shall require as a condition precedent to the issuing thereof that the clerk shall take from the plaintiff a written undertaking, with sufficient sureties, to be justified before, and approved by, the said clerk, or by the judge, in an amount to be fixed by the judge, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto.

Code, s. 341; C. C. P., s. 192.

818. Damages. A judgment dissolving an injunction shall carry with it judgment for damages against the party procuring the injunetion and the sureties on his undertaking without the requirement of malice or want of probable cause in procuring the injunction, which damages may be ascertained by a reference or otherwise, as the judge shall direct, and the decision of the court thereupon shall be conclusive as to the amount of damages upon all the persons who have an interest in the undertaking.

Code, s. 341; 1893, c. 251.

819. Issued without notice, vacated when: verified answer an affidavit. If the injunction be granted without notice, the defendant, at any time before the trial, may apply, upon notice to be fixed by the court of not less than two nor more than ten days, to the judge having jurisdiction thereof, to vacate or modify the same, if he is within the district or in an adjoining district, but if out of the district and not in an adjoining district, then before any judge at the time being in the district, and if there be no judge in the district, before any judge in an adjoining district. The application may be made upon the complaint and the affidavits on which the injunction was granted, or upon the affidavits on the part of the defendant, with or without answer; but if no such application be made, the injunction shall continue, and be in force until such application shall be made and determined by the judge, and a verified answer has the effect only of an affidavit.

Code, s. 344; C. C. P., s. 195; 1905, c. 26.

820. Opposing affidavits. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proof, in addition to those on which the injunction was granted.

Code, s. 345; C. C. P., s. 196.

821. When granted to restrain collection of taxes. No injunction shall be granted by any court or judge to restrain the collection of any tax or any part thereof, nor to restrain the sale of any property for the nonpayment of any such tax, except such tax or the part thereof enjoined be levied or assessed for an illegal or unauthorized purpose or be illegal or invalid, or the assessment be illegal or invalid.

1901, c. 558, s. 30; 1899, c. 15, s. 78; 1887, c. 137, s. 84.

NOTE. For action to recover illegal taxes paid, see s. 2855.

For injunction pending appeal from Corporation Commission, see s. 1080.

XXXVIII. MANDAMUS.

822. Begun by summons and verified complaint. All applications for writs of mandamus shall be made by summons and complaint, and the complaint shall be duly verified.

Code, s. 622; 1871-2, c. 75.

823. Money demand enforced at term. In all such applications, when the plaintiff seeks to enforce a money demand, the summons, pleadings and practice shall be the same as is prescribed for civil actions.

Code, s. 623; 1871-2, c. 75, s. 2.

824. Other actions returnable in vacation; issues of fact. When the plaintiff seeks relief other than the enforcement of a money demand, the summons shall be made returnable before a judge of the superior court at chambers, or in term at a day specified in the summons, not less than ten days after the service of the summons and complaint upon the defendant; at which time the court, except for good cause shown, shall proceed to hear and determine the action, both as to law and fact: Provided, that when an issue of fact is raised. by the pleading, it shall be the duty of the court, upon the motion of either party, to continue the action until said issue of fact can be decided by a jury at the next regular term of the court.

Code, s. 623; 1871-2, c. 75, s. 3.

XXXIX. NUISANCE.

825. How remediable. Injuries remediable by the old writ of nuisance are subjects of action as other injuries; and in such action

there may be judgment for damages, or for the removal of the nuisance, or for both.

Code, s. 630; C. C. P., s. 387.

XL. QUO WARRANTO.

826. Writs of sci. fa. and quo warranto abolished. The writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of quo warranto, are abolished; and the remedies obtainable in those forms may be obtained by civil actions under this subchapter.

Code, s. 603; C. C. P., s. 362; R. C., c. 26, ss. 5, 25.

827. Action by attorney general upon usurpation or forfeiture of office. An action may be brought by the attorney general in the name of the state, upon his own information, or upon the complaint of any private party, against the parties offending, in the following

cases:

1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state; or,

2. When any public officer, civil or military, shall have done or suffered an act which, by law, shall make a forfeiture of his office. Code, s. 607; C. C. P., s. 366.

Note. For right of attorney general to institute actions for the forfeiture of corporate charters and the like, see s. 1198.

For right to institute action to forfeit grants, see s. 1750.

828. Leave granted by attorney general to private person, when. When application shall be made to the attorney general by a private relator to bring such an action, he shall grant the leave that the same may be brought in the name of the state, upon the relation of such applicant, upon such applicant tendering to the attorney general satisfactory security to indemnify the state against all costs and expenses which may accrue in consequence of the bringing of such action.

Code, s. 608; 1874-5, c. 76; 1881, c. 330.

Note. For costs in such action, see s. 1261.

For leave in actions relating to corporations, see s. 1196.

829. Solvent sureties required. The attorney general, before granting leave to a private relator to bring a suit to try the title to an office, may require two sureties to the bond required by law to be filed to indemnify the state against costs and expenses, and require such sureties to justify, and may require such proof and evidence of the solvency of said sureties as may be satisfactory to him.

1901, c. 595, s. 2.

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