Casper Wyoming Theaters Co. v. Rex Inv. Co.

• Decision Date: 19 December 1927
• Docket Number: 1360
• Citation: 261 P. 908,37 Wyo. 357
• Parties: CASPER WYOMING THEATERS CO., ET AL. v. REX INV. CO. [*]
• Court: Wyoming Supreme Court

261 P. 908

37 Wyo. 357

CASPER WYOMING THEATERS CO., ET AL. v. REX INV. CO. ^[*]

No. 1360

Supreme Court of Wyoming

December 19, 1927

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Suit by the Rex Investment Company against the Casper Wyoming Theaters Company and another. An injunction was granted to plaintiff, as prayed for, and defendants bring error.

Order reversed and case remanded.

Foster & Wehril, and A. B. Manning, for plaintiffs in error.

A covenant as to right of re-entry requires enforcement by legal proceedings; Nettleton v. Evans, (Wash.) 121 P. 54; McClellan v. Gaston, (Wash.) 51 P. 1062; it cannot be accomplished by force, Weaver v. Richardson (Wyo.) 132 P. 1148; Spencer v. Co., 71 P. 53. The application to dissolve the injunction should have been granted. Defendant's remedy was by forcible entry and detainer. Hammond Co. v. Boney, (Ind.) 107 N.E. 484; Sec. 6621 C. S.; Judy v. Citizen, 101 Ind. 18; McIntyre v. Murphy, 153 Mich. 342. The entry was forcible, Clark v. Lagenbach, 130 F. 755; Donovan v. Chapter, (Mich.) 30 N.W. 329. The injunction operated to transfer the possession from plaintiffs in error to defendant in error, and should have been dissolved, Blinn v. Soc., 140 P. 194; Black v. Jackson, 117 U.S. 349; Hall v. Henninger (Ia.) 121 N.W. 6. Legal remedies are adequate for securing possession of real estate, Yellow Pine Co. v Co., (Ala.) 37 So. 922; State Co. v. Judge (Mich.) 106 N.W. 394; Bank v. Folsom, (Tex.) 247 S.W. 591; Hill v. Brown, (Tex.) 237 S.W. 252; Stone v. Snell, (Nebr.) 94 N.W. 525. The Court should have dissolved the injunction upon the showing made by plaintiffs in error. Tifel v. Jenkins, (Md.) 53 A. 429; Lamm v. Burrell, (Md.) 14 A. 692. The question of insolvency does not govern. Moore v. Halliday, (Ore.) 72 P. 801; Mechanics Foundry v. Ryall, (Calif.) 17 P. 703; Whithead v. Shattuck, 138 N.C. 150; Iron Mt. Co. v. Johnson, 119 U.S. 608. The petition does not state a cause of action in failing to describe the property, 5685 C. S.; Tracy v. Harmon, (Mont.) 43 P. 500; Scheffer v. Hines, (Ind.) 49 N.W. 348. The petition fails to show that the business was established or was being operated or that an injunction was necessary to protect it, which are essential allegations, 32 C. J. 156; Vanderplatt v. Ass'n., 62 A. 453. The petition did not show that plaintiff was without legal remedy. Williams v. Mathewson, (N. H.) 60 A. 688; Streator v. Linscott, (Calif.) 95 P. 42; Wilkening v. Wolff, 220 S.W. 598. The affidavit in support of the petition is insufficient to support the issuance of an injunction, Howard v. Eddy, (Kans.) 43 P. 1133; Power v. Village, 2 N.E. 609.

Nichols & Stirrett, W. H. Patten and Durham & Bacheller, for defendant in error.

The taking of possession, after default under conditional sale, is not conversion, Silverstin v. Kohler, (Calif.) 183 P. 451; Lambert v. Robinson, 162 Mass. 34; Wilmerding v. Co., (Ga.) 50 S.E. 100; Co. v. Dyson, 19 L.R.A. (N.S.) 606. The authorities cited by plaintiffs in error relate to mortgages. We did not seek possession by injunction and no right of possession was involved in the injunction suit; we were in possession. Bank v. Folsum, 237 S.W. 591. The lease had been surrendered by refusal to pay rent, 16 R. C. L. 1177; Ft. Dearborn Lodge v. Kline, 3 N.E. 272; Allen v. Houn, (Wyo.) 219 P. 573. A lawful entry unaccompanied by force is permitted by the statute, 6621 C. S.; Smith v. Assn., (Mich.) 39 L.R.A. 410; Page v. Dwight, (Mass.) 39 L.R.A. 418; Allen v. Keily, (R. I.) 24 A. 776; Clark v. Mylkes, (Vt.) 115 A. 492, 2 Thompson Real Property, Sec. 1482; Browder v. Phinney, (Wash.) 79 P. 598. As the right of re-entry existed by agreement in the lease, the owner after taking possession can have such possession protected by injunction, 36 C. J. 597; Collins v. Stanley, (Wyo.) 83 P. 620. The judgment should be affirmed.

Before KIMBALL, Justice, ILSLEY and RINER, District Judges. KIMBALL, J., and RINER, District Judge, concur.

OPINION

ILSLEY, District Judge.

This suit was instituted in the District Court of Natrona County by the defendant in error against the plaintiffs in error, by a petition asking for the issuance of an injunction restraining the plaintiffs in error from interfering in any manner with the possession of certain real property, consisting of the America and the Iris Theatres, situated in Casper, Wyoming. For convenience' sake, Rex Investment Company will be called "plaintiff," and Casper Wyoming Theatres Company and George R. Stewart, "defendants."

A temporary order was signed by the district judge restraining the defendants, their agents, employes, and representatives, from in any manner interfering with the possession, ownership, or control of the plaintiff as respects the real estate in question. Thereafter an answer was filed by the defendants and a motion was made by the defendants, supported by affidavits, to dissolve the injunction. It seems that the court permitted the defendants to withdraw their answer and replead, which was done by filing another answer and another motion, supported by affidavits, to dissolve the injunction. And, upon the hearing had upon the answer and the motion to dissolve the injunction, the district court refused to dissolve the same, but made a final order making the temporary restraining order, as originally issued, permanent. Of this order the defendants complain.

The plaintiff contended it was the owner and in peaceable possession of the theatres, and that the defendants, through their agents, servants, and employes, interfered with its possession by attempting to conduct moving pictures in each of the theatres; and, therefore, sought and obtained the order restraining the defendants from in any manner interfering or molesting the plaintiff in its possession. On behalf of the defendants it is maintained that they were in peaceable possession of the two theatres under a lease, and that the plaintiff, on the morning of August 25, 1925, by one of its officers (A. H. Stewart) and certain attorneys and other persons employed by it, appeared at each of the two theatres and, by force, sought to obtain possession of the property, it being the contention of the defendants that they at no time voluntarily surrendered possession; that they insisted on their right to possession and endeavored to keep in possession of the two theatres, until the injunctional order, referred to, was served on them late in the afternoon of August 25. At the hearing affidavits were presented on behalf of both plaintiff and defendants, and in addition thereto oral testimony was received. It fairly appears from the affidavits and the testimony received that, on the morning of August 25, 1925, and for some years before that time, the defendants were conducting a moving picture business at each of the theatres in question; that on this particular morning the cashiers, door-keepers ushers, popcorn girl, and operators of the moving picture machines, and other employes of the defendants went to work, as usual, in the two theatres; that A. H. Stewart, president of the plaintiff company, appeared about 8:30 A. M. in the lobby of the Iris Theatre, and when defendants' cashier opened the box-office and patrons appeared to purchase tickets, Stewart informed them that he would take the money, and, after taking money for admissions, the doorkeeper for the defendants refused to admit the patrons from whom Stewart collected money. When the doorkeeper refused to admit the patrons, Stewart attempted to escort the patrons into the theatre, and a scuffle ensued between the doorkeeper and Stewart, and a considerable crowd congregated in front of the Iris Theatre, and during the confusion the chief of police and a couple of policemen cleared the lobby and restored order; that at approximately the same time at the America Theatre there appeared Mr. Patten (one of the attorneys for the plaintiff) and one Milo Garside, who proceeded to tear down the advertising matter placed in front of the America Theatre by the defendants, and to replace the same with advertising matter of an entirely different picture; that thereupon two ushers took down the advertising matter placed by Mr. Patten and Mr. Garside, and replaced it with defendants'; that Mr. Patten collected money in front of the box-office from patrons seeking admission to the theatre, and the patrons were not admitted by the doorkeeper and the ushers, and thereupon Mr. Patten attempted to push the patrons by the ushers and into the theatre. It further appears that there was considerable confusion in both theatres, and that several altercations took place in the lobbies, and that at one time there were two separate and distinct pictures thrown on the screen simultaneously, one by the regular operator of the America Theatre, and one by another operator running a different picture from the projection room, which operator was hired by the plaintiff; that after Mr. Patten had attempted to collect money for some twenty minutes, and had attempted to force people through the door into the theatre, he left the premises and the picture show was conducted by the manager of the defendant company until late in the afternoon of the 25th of August. It also appears that one G. R. Stewart, manager of the defendant company, signed and swore to a complaint in justice court, charging the president of the plaintiff company and one Milo Garside with unlawfully taking possession of the Iris and the America Theatres; and it further appears that about 5 o'clock P. M. of the 25th of August, the defendants were served with the order of injunction restraining them from in any manner molesting or interfering with the plaintiff; and thereupon the defendants and their employes desisted in their...