Rose v. Aaron

345 Mich. 613 (1956)

76 N.W.2d 829

ROSE v. AARON.

Docket No. 21, Calendar No. 46,707.

Supreme Court of Michigan.

Decided May 14, 1956.

Harry H. Anbender and David Anbender, for plaintiff.

Lee C. McManus, for defendant.

DETHMERS, C.J.

Plaintiff filed a bill of complaint, the prayer of which asked for no other relief than a temporary and permanent injunction restraining defendant from receiving gifts from, associating with, or visiting plaintiff's wife. Plaintiff obtained an ex parte temporary restraining order granting such relief. Thereafter plaintiff obtained an order requiring defendant to show cause why he should not be punished for contempt for violation of the restraining order. Upon hearing thereon, defendant was found guilty of contempt in the manner stated and sentenced to serve 30 days in the county jail and pay costs of $50. From the order finding defendant guilty of contempt and imposing the sentence, he appeals.

Under our holding in Hadley v. Hadley, 323 Mich 555, plaintiff was not entitled to the relief prayed, the temporary restraining order should not have issued, and defendant's motion to dismiss the bill of complaint and dissolve the temporary restraining order, denied by the trial court, should have been granted.

*615 Although the temporary restraining order was improperly granted, it should have been obeyed until dissolved and the court had the power to punish disobedience thereof as for contempt. Holland v. Weed, 87 Mich 584, 588; Phillips v. City of Detroit, 2 Flip 92, 99 (Fed Cas No 11,101). Accordingly, defendant is not entitled to reversal of the order from which he appeals nor to costs. That order further provided, however, that the sentence therein specified be suspended to permit an appeal here, failing in which defendant was to be required to present himself to the trial court "for re-sentence." In line with the reasoning in Holland v. Weed, supra, we do not think, in view of the circumstances of this case and the provisions of the lower court's order, that that court is called upon to protect its dignity by resentencing defendant for violation of a temporary restraining order improperly entered.

An order may enter here dissolving the restraining order and dismissing plaintiff's bill of complaint. No costs.

SHARPE, SMITH, BOYLES, KELLY, CARR, and BLACK, JJ., concurred.

The late Justice REID took no part in the decision of this case.