Carlin v. Wolff

• Decision Date: 15 June 1899
• Citation: 51 S.W. 679,154 Mo. 539
• Parties: CARLIN v. WOLFF et al.
• Court: Missouri Supreme Court

51 S.W. 679

154 Mo. 539

CARLIN v. WOLFF et al.

Supreme Court of Missouri, Division No. 2.

June 15, 1899.

INJUNCTION — BILL OF EXCEPTIONS — EVIDENCE — ENJOINING OBSTRUCTION OF HIGHWAY.

1. Injunction lies only for a threatened wrong for which no adequate legal remedy is afforded, and a court of equity will not issue an injunction to prevent the performance of an act already consummated.

2. The attachment of a plat, which was in evidence, and which is referred to in a bill of exceptions as an exhibit, to the bill of exceptions, is a sufficient compliance with Rev. St. 1889, § 2304, which provides that evidence shall be incorporated in the bill of exceptions.

3. A court of equity will not grant an injunction to prevent the obstruction of a highway, on vague, uncertain, and contradictory evidence.

Appeal from circuit court, Cole county; D. W. Shackleford, Judge.

Petition by William Carlin against Hermann Wolff and others for an injunction. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Silver & Brown, for appellant. Pope & Belch, for respondents.

SHERWOOD, J.

Injunction to restrain defendants, and chiefly defendant Hermann, from building his fence, and thereby obstructing a certain alley in the immediate rear of plaintiff's premises, situate in that certain and uncertain locality known and unknown as the "Lower Jefferson Addition" to the city of Jefferson. In addition to injunctive relief, the petition prays for an assessment of damages as compensation for obstructing the alley aforesaid, which it is charged denied plaintiff ingress to and egress from the rear end of his lot. The answer of Hermann denies having ever obstructed the alley with his fence, but states that "the matters complained of, and which plaintiff now seeks to enjoin, long since happened and were completed, and that this court cannot restrain him from doing what has already been done." There was no reply filed. The answer of the other defendants was, in effect, a general denial and a disclaimer. Upon hearing had, the court found the issues for defendants, and gave judgment accordingly:

1. The evidence shows that defendant Fred Wolff and Waldemar Wolff, Hermann's sons, were prosecuted for obstructing the litigated alley, and on trial, which occurred on November 26, 1895, they went acquit of the charge, and that two days thereafter, to wit, November 28th, the fence was finished. Now, the summons issued and was served in this cause on the same day the petition was filed, to wit, November 30, 1895, which was two days after the fence was completed. More than that, the answer alleging the completion of the fence went undenied, and so must be taken as true; and it is wholly immaterial whether the fence in question was completed before or after suit brought, since an injunction, if granted, could not have any retroactive effect on work being done and incomplete when suit brought, but complete when answer filed. It is familiar and well-settled law that a court of equity will not attempt to restrain the doing of any work which has already been accomplished, and for obvious reasons. 10 Am. & Eng. Enc. Law, p. 783, and cases cited; 1 High, Inj. (3d Ed.) § 23, and cases cited, — among them, Owen v. Ford, 49 Mo. 436. This feature is alone decisive of the affirmance of the judgment...