SEC. 1137. Judgment for relator. 1138. Order, how enforced. 1139. Damages. 1140. One information against several. 1141. Judgment of ouster or forfeiture. SEC. 1142. Judgment against corporation. 1145. To annul instrument. [1881 S., p. 240. In force September 19, 1881.] 1131. When filed. 814. An information may be filed against any person or corporation in the following cases: First. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office or any franchise within this State, or any office in any corporation created by the authority of this State. Second. Whenever any public officer shall have done or suffered any act which, by the provisions of law, shall work a forfeiture of his office. Third. Where any association or number of persons shall act, within this State, as a corporation, without being legally incorporated. Fourth. Or where any corporation do or omit acts which amount to a surrender or a forfeiture of their rights and privileges as a corporation, or when they exercise powers not conferred by law. (749.) 1. The proper way to attack the title to a city office is by information, there being no provision for contesting the election.- Gass v. State, 34 Ind. 425. 2. An information against a person for the unlawful exercise of a franchise must be filed by some person interested in such franchise.- State v. Smith, 32 Ind. 213. 3. Present insolvency alone will not support quo warranto against a corporation.State v. Baily, 16 Ind. 46. 4. When a corporation does, or fails to do, acts which amount to a forfeiture of its charter, or exercises powers not conferred thereby, an information may be sustained against it.- Danville, etc., P. R. Co. v. State, 16 Ind. 456. 5. Information may be filed by the Prosecuting Attorney, in the name of the State, on the relation of a stockholder therein, against an alleged illegally organized banking company, to compel the appointment of a receiver and the liquidation of its assets and liabilities. Albert v. State, 65 Ind. 413. 6. A proceeding by information in the nature of a quo warranto lies where persons act as a corporation without being incorporated.- Board v. Hall, 70 Ind. 469. 1132. By whom filed. 815. The information may be filed by the Prosecuting Attorney in the Circuit Court of the proper county, upon his own relation, whenever he shall deem it his duty to do so, or shall be directed by the Court or other competent authority, or by any other person on his own relation, whenever he claims an interest in the office, franchise, or corporation which is the subject of the information. (750.) 1133. Of what to consist. 816. The information shall consist of a plain statement of the facts which constitute the grounds of the proceeding, addressed to the Court. (751.) 1134. For usurping office. 817. Whenever an information shall be filed against a person for usurping an office, by the Prosecuting Attorney, he shall also set forth therein the name of the person rightfully entitled to the office, with an averment of his right thereto; and when filed by any other person, he shall show his interest in the matter; and he may claim the damages he has sustained. (752.) 1135. Šummons and proceedings. 818. Whenever an information is filed, a summons shall issue thereon; which shall be served and returned as in other actions. The defendant shall appear and answer, or suffer default, and subsequent proceedings be had as in other cases. (753.) 1136. Contest for office- Judgment. 819. In every case contesting the right to an office, judgment shall be rendered upon the rights. of the parties and for damages the relator may show himself entitled to, if any, to the time of the judgment. (754) 1137. Judgment for relator. 820. If judgment be rendered in favor of the relator, he shall proceed to exercise the functions of the office, after he has been qualified as required by law; and the Court shall order the defendant to deliver over all the books and papers in his custody or within his power, belonging to the office from which he shall have been ousted. (755.) 1138. Order, how enforced. 821. If the defendant shall refuse or neglect to deliver over the books and papers, pursuant to the order, the Court, or Judge thereof, shall enforce the order by attachment and imprisonment. (756.) 1139. Damages. 822. When the judgment is rendered in favor of the plaintiff, he may, if he has not claimed his damages in the information, have his action for the damages at any time within one year after the judgment. (757.) ation 1140. One information against several. 823. When several persons claim to be entitled to the same office or franchise, one information may be filed against any or all such persons, in order to try their respective rights to the office or franchise. (758.) 1141. Judgment of ouster or forfeiture. 824. Whenever any person shall be found guilty of any usurpation of, or intrusion into, or unlawfully exercising any office or any franchise within this State, or any office in any corporation created by the authority of this State; or when any public officer, thus charged, shall be found guilty of having done or suffered any act which, by the provisions of law, shall work a forfeiture of his office; or when any association or number of persons shall be found guilty of having acted as a corporation, without having been legally incorporated, the Court shall give judgment of ouster against the defendant, and exclude him from the office, franchise, or corporate rights (and in cases of corporations, that the same shall be dissolved), and the Court shall adjudge costs in favor of the plaintiff. (759.) 1142., Judgment against corporation. 825. If judgment be rendered against any corporation, or against any persons claiming to be a corporation, the Court may cause the costs to be collected by execution against the persons claiming to be a corporation, or by attachment against the directors or other officers of the corporation; and shall restrain the corporation, appoint a receiver of its property and effects, take an account, and make a distribution thereof among the creditors. The Prosecuting Attorney shall immediately institute proceedings for that purpose. (760.) 1143. To recover escheated property. 826. Whenever any property shall escheat or be forfeited to the State for its use, the legal title shall be deemed to be in the State from the time of the escheat or forfeiture; and an information may be filed by the Prosecuting Attorney in the Circuit Court for the recovery of the property, alleging the ground on which the recovery is claimed; and like proceedings and judgment shall be had as in a civil action for the recovery of property. (761.) 1. The Attorney-General may file an information in the name of the State, on h.3 relation, to recover lands which have escheated to the State.-State v. Meyers, 63 Ind. 33. 1144. Costs. 827. When an information is filed by the Prosecuting Attorney, he shall not be liable for costs; but when it is filed upon the relation of a private person, he shall be liable for costs, unless the same are adjudged against the defendant. (762.) 1145. To annul instrument. 828. An information may be prosecuted for the purpose of annulling or vacating any letters-patent, certificate, or deed granted by the proper authorities of this State, when there is reason to believe that the same were obtained by fraud, or through mistake or ignorance of a material fact, or when the patentee or those claiming under him have done or omitted an act in violation of the terms on which the letters, deed, or certificate was granted, or have by any other means forfeited the interest acquired under the same. (763.) 1146. Proceedings to annul. 829. In such cases, the information may be filed by the Prosecuting Attorney, upon his relation, or by any private person, upon his relation, showing his interest in the subject-matter; and the subsequent proceeding, judgment of the Court, and awarding of costs shall conform to the above provisions, and such letters-patent, deed, or certificate shall be annulled or sustained according to the right of the (764.) case. 1147. Who may grant. 177. Restraining orders and injunctions may be granted by the Supreme Court in term time, when necessary and proper for the due exercise of the jurisdiction and powers of such Court, or by any Judge thereof in vacation or recess, and by the Circuit Courts in their respective counties in term time, or by the Judges thereof in vacation, or by a Master Commissioner, as provided for in section four hundred and nineteen [§ 1404], and the said Courts in term time, or the Judges thereof in vacation, or a Master Commissioner, as provided for in aforesaid section, may, in any county of the circuit, issue restraining orders or injunctions to operate in any other county in the circuit. (136.) 1. Injunction will lie against an illegal tax, when part of the taxes assessed is legal ; but the legal tax must be first tendered or paid.— City v. University, 69 Ind. 344. 2. Injunction lies to prevent the cutting of growing trees.-Thatcher v. Humble, 67 Ind. 444; Robertson v. Meadors, 73 id. 43. 3. One not a citizen and taxpayer of a town can not injoin the opening of a highway therein. Sparling v. Dwenger, 60 Ind. 72. 4. Legal proceedings will not usually be injoined on grounds of which the party may avail himself in defense thereto.- Hartman v. Heady, 57 Ind. 545. 5. Injunction lies against an unauthorized street improvement.- McGill v. Bruner, 65 Ind. 421. 1148. Proceedings to obtain. 178. When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce great injury to the plaintiff; or when, during the litigation, it appears that the defendant is doing, or threatens, or is about to do, or is procuring or suffering some act to be done, in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual; or when such relief, or any part thereof, consists in restraining proceedings upon any final order or judgment,—an injunction may be granted to restrain such act or proceedings, until the further order of the Court; which may, afterward, be modified upon motion. And when it appears in the complaint at the commencement of the action, or during the pendency thereof by affidavit, that the defendant threatens or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction may be granted to restrain the removal or disposition of his property. (137.) 1. Courts, under the Code, may injoin the commission of unlawful injury, and render judgment for unlawful damages already occasioned in the same case.— Bonnell v. Allen, 53 Ind. 130. 2. When a judgment is recovered in a Court of another State, upon a judgment previously rendered in this, the latter is wholly merged, and all proceedings thereon may be injoined.- Gould v. Hayden, 63 Ind. 443. 3. A judgment procured by fraud may be injoined.- Poe v. Decker, 5 Ind. 150. 4. Injunction will not lie to restrain a trespass which may be compensated for in damages. Clark v. R. R. Co., 44 Ind. 248. 5. Injunction lies to prevent waste.- McCaslin v. State, 44 Ind. 151. 1149. Application to be verified. 179. In all applications for an injunction, the complaint, or so much thereof as pertains to the acts or proceedings to be injoined, shall be verified by affidavit. The injunction may be granted at the time of commencing the action, or at any time afterward before judgment in that proceeding. (138.) 1. The complaint must be verified by affidavit.-- McQuarie v. Hildebrand, 23 Ind. 122; Ross v. Crews, 33 id. 120. 2. No verification is necessary to a complaint for a perpetual injunction, when no temporary one is asked for.- Rich v. Desser, 50 Ind. 309. 3. The objection that the complaint is not verified can not be raised by demurrer.— Hall v. Hough, 24 Ind. 273. 4. A complaint for an injunction which does not state that the party is doing, or threatening, or about to do the things sought to be injoined, is bad on demurrer.Ploughe v. Boyer 38 Ind. 113. 1150. Notice necessary, unless emergency. 180. No injunction shall be granted until it shall appear to the Court or Judge granting it, that some one or more of the opposite party concerned has had reasonable notice of the time and place of making the application; except that in cases of emergency, to be shown in the complaint, the Court may grant a restraining order until notice can be given and hearing thereon. (139.) 1151. Affidavits may be read. 181. On the hearing of an application for a restraining order or temporary injunction, each party may read affidavits or documentary or record evidence. (140.) 1152. Terms and conditions. 182. Upon the granting or continuing of an injunction, such terms and conditions may be imposed upon the party obtaining it as may be deemed equitable. (141.) 1153. Bond. 183. No injunction or restraining order shall be granted until the party asking it shall enter into a written undertaking, with surety to be approved by the Court or Judge, to the adverse party affected thereby, for the payment of all damages and costs which may accrue by reason of the injunction or restraining order. (142.) 1. Injunction-bonds should receive a liberal construction.—Conner v. Paxson, I Blackf. 207. 2. An injunction-bond is not a mere common-law obligation: it is statutory; and any defects in it may be suggested and corrected under section 1221.— Boden v. Dill, 58 Ind. 273. 3. It is not material that the name of the surety should be in the body of the bond, or that the approval of the Judge should appear thereon.- Griffin v. Wallace, 66 Ind. 410. 4. In an action upon an injunction-bond, the record in the injunction suit need not be set out, nor the grounds upon which the injunction was granted.- Merrifield v. Weston, 68 Ind. 70. 1154. Second bond unnecessary- Exception. 184. When an injunction is granted upon the hearing, after a temporary restraining order, the plaintiff shall not be required to enter into a second written undertaking, unless the former shall be deemed insufficient, but the plaintiff and his surety shall remain liable upon the original undertaking. (143) 1155. Copy of order a sufficient writ. 185. It shall not be necessary to issue a writ of injunction, but the Clerk shall issue a copy of the order of injunction, duly certified by him; which shall be forthwith served by delivering the same to the adverse party. (144.) 1156. Stay of judgment-Release of errors. 186. In applications to stay proceedings after judgment, the plaintiff shall indorse upon his complaint a release of errors in the judgment whenever required to do so by the Judge or Court. (145.) 1. The release need not be recited in or indorsed on the complaint, until required by the Court.-- Rich v. Desser, 50 Ind. 309. 1157. When and whom binds. 187. An order of injunction shall bind every person and officer restrained, from the time he is informed thereof. (146.) 1158. Notice of. 188. When notice of the application for an injunc tion has been given to the adverse party, it shall not be necessary to serve the order upon him, but he shall be bound by the injunction as soon as the written undertaking required of the plaintiff is executed and delivered to the proper officer. (147.) 1159. Money on judgment injoined, paid to Clerk. 189. Money collected upon a judgment afterward injoined, remaining in the hands of the collecting officer, shall be paid to the Clerk of the Court granting the injunction, subject to the order of the Court. (148.) 1160. Order disobeyed, contempt. 190. Whenever it shall appear to any Court granting an order of injunction, or Judge thereof in vacation, by affidavit, that any person has willfully disobeyed the order, after notice thereof, such Court or Judge shall award an attachment for contempt against the party charged or a rule to show cause why it should not issue. The attachment or rule shall be issued by the Clerk of the Court, and directed to the Sheriff, and shall be served by him. (149.) 1. An appeal from an order of injunction does not permit the appellant to do an act which by the injunction he is forbidden to do.- State v. Chase, 41 Ind. 356. 1161. Service of attachment-Action of Court. 191. The attachment for contempt shall be immediately served by arresting the party charged, and bringing him into Court, if in session, to be dealt with as in other cases of contempt; and the Court shall also take all necessary |