Fort v. Co-Operative Farmers' Exchange, Inc.

• Citation: 256 P. 319,81 Colo. 431
• Decision Date: 09 May 1927
• Docket Number: 11594.
• Parties: FORT et al. v. CO-OPERATIVE FARMERS' EXCHANGE, Inc.
• Court: Colorado Supreme Court

256 P. 319

81 Colo. 431

FORT et al. v. CO-OPERATIVE FARMERS' EXCHANGE, Inc.

No. 11594.

Supreme Court of Colorado

May 9, 1927

Department 2.

Error to District Court, Weld County; Robert G. Smith, Judge.

Suit by The Co-Operative Farmers' Exchange, Inc., against Z. J Fort, doing business under the firm name and style of the Celeryvale Farm, and Philip Yoon. Final injunction orders were granted against both defendants, and several judgment was rendered against the defendant Fort for contempt of the district court. The defendants sued out a joint writ of error.

Affirmed.

See also, 256 P. 325.

Allen, Webster & Drath, of Denver, for plaintiffs in error.

Donald C. McCreery and Hubert D. Waldo, Jr., both of Greeley, for defendant in error.

CAMPBELL J.

The plaintiff in error Fort, doing business under the name of the Celeryvale Farm, and Philip Yoon, his employee have sued out this joint writ of error to review preliminary and final joint injunction orders against both of them and a several judgment imposing a fine of $25 on Fort alone for contempt of the district court of Weld county. The fine was inposed for a violation by Fort of a temporary restraining order issued by the court without notice in an action pending therein, wherein the plaintiff, the Co-Operative Farmers' Exchange, a Colorado corporation organized under our Co-operative Marketing Act had brought the action against Fort and his employee Yoon, plaintiffs in error, to restrain them, and the court did temporarily restrain them, from inducing, or attempting to induce, the breach of, or interfering in any manner whatever with, the marketing contracts between the plaintiff exchange and its members, or any thereof, and from interfering in any manner whatever with such business or affairs of the plaintiff, and particularly from buying, or attempting to buy, or receiving or attempting to receive, any cabbage from any persons known by them to have marketing contracts with the exchange. Such further facts as are necessary to an understanding of the controversy will be referred to later in the opinion.

The objections and assignments of error by plaintiffs in error may thus be summarized: (1) The temporary restraining order without notice was improperly issued; (2) the trial court had no jurisdiction to issue either the temporary restraining order, the later temporary injunction, or its permanent injunction granted upon final hearing; (3) the evidence is not sufficient to support a permanent injunction; (4) neither of the plaintiffs in error was guilty of contempt; (5) the court committed error in refusing upon their request the demand of the defendants for a jury trial, whether they were or were not guilty of a violation of the injunction order.

Preliminary to the discussion of these assignments it should be said that this writ of error is a joint, not a separate, writ. Seasonably, and before the time for the filing of briefs under our rules had arrived, the defendant in error filed a motion to dismiss the writ of error upon the ground that a joint writ of error by two or more does not lie to review a separate judgment or decree against one only, since each defendant is interested or concerned, if at all, only with that judgment against him alone, and not the judgment against the other, citing McKnight v. McKnight, 49 Colo. 60, 111 P. 583. We then declined to pass upon the motion of defendant in error to dismiss, or upon the application of the plaintiffs in error to amend their assignments of error so as to make them both joint and several, and reserved ruling thereon till final hearing. Without intimating now whether the plaintiff in error Fort, as matter of right, is entitled to a hearing in this joint writ, as to the contempt judgment against him alone, we have concluded not to pass upon the objection, since we have reached, and are satisfied with, our conclusion on the merits, that the several judgment imposing the fine on Fort and the joint injunction decree against both plaintiffs in error are, and each of them is, right, and should be affirmed.

1. The general rule, and it is recognized by our Code of Procedure, is that one who applies for a writ of injunction must give notice to the opposite party. Section 165 of our Code contains an exception thereto, and provides that, if complainant shall give a prescribed emergency bond, and shall file an affidavit by himself or his representative, and by not less than two other persons, showing that irreparable mischief or injury will result to him, if notice be given, and further states matters which are not material in the present case, the court or judge shall have power to grant a temporary restraining order to remain in force only until plaintiff can have his application heard. Plaintiffs in error here contend that the emergency or restraining order without notice was improperly issued upon several grounds. They say that, though the representative of the plaintiff corporation had, by his affidavit verifying the complaint, satisfied one of the requirements of the section, the two sustaining affidavits as to the irreparable mischief were on information and belief of the affiants, and not positive and direct, as the section contemplates. Whether or not the two designated sustaining affidavits are insufficient, because not positive and direct, but only on information and belief, we need not determine, because four sustaining affidavits were made and filed, and the other two are positive and direct in their statements, and clearly sufficient as against the objection urged. Plaintiffs in error are not altogether fair, at least not accurate, in their abstract of the record in saying that these two positive affidavits, which we have held a sufficient compliance with the Code, are the same as the two alleged insufficient affidavits on information and belief. That is a misstatement. The abstract does not purport to contain the contents of these two sufficient affidavits, but we have examined the transcript of the record, and find the criticism of them by learned counsel is not well founded. They are positive and direct. As to form and substance there were a sufficient number of affidavits to meet the requirements of the section.

Plaintiffs in error also say that the affidavits do not show that irreparable injury would result if notice of the application for the temporary restraining order was made. We think this also is a misconception. The allegations of the duly verified complaint and the supporting affidavits, in substance, are in this particular that Fort, a large and rival dealer in cabbage in that region, and Yoon, his employee, unlawfully, deliberately, and with malicious intent, at certain specified times, and at divers times thereafter, and up until the filing of the complaint, induced, or attempted to induce, an interference with the performance of the marketing contracts which the plaintiff exchange had made with its many members, known by defendants to be such, for the purchase and marketing of cabbage, and that they are, and for some time past have been, soliciting and attempting to induce such members of the exchange to break and breach their several marketing contracts, and to sell and dispose of their cabbage, directly or indirectly, to the defendant Fort, and that Fort has contracted, and is now contracting and purchasing cabbage from members of the exchange, well knowing that the same was contracted to the exchange under and by virtue of the marketing contracts, which acts and practices of the defendants were calculated and intended to cause, and were causing, dissatisfaction and discontent among members of the exchange, and intended to impair, and were impairing and destroying, the business of the exchange, to its great and irreparable injury. At this time, the early cabbage crop in Weld and Adams counties, where the exchange was operating, was then maturing and being marketed. Specific instances of such acts and conduct of the defendants are set forth in the complaint and the affidavits. The affidavits further state that the defendants were continuing maliciously and falsely to represent to the members of the exchange and others that the officers and agents of the exchange were not dependable or trustworthy, and that prices paid by it were inadequate--all of which were intended and were calculated to foment and cause dissatisfaction and discontent, and ultimately to destroy the exchange. Coupled with these and similar allegations were statements that the emergency was not the result of the creation or connivance of the exchange or any of its members, and that the suit was commended at the earliest time it could be instituted after learning the facts.

We have thus stated some of the material allegations of the complaint and the sustaining affidavits because they show clearly, if true, that the necessary emergency existed; that it was not brought about by the connivance of the plaintiff; that irreparable injury would result, or might result, by the giving of notice. In other words, we think the complaint together with the sustaining affidavits, show a sufficient compliance with the requirements of the statute, and the granting of the temporary restraining order, in the circumstances, was justified. The court certainly had jurisidction of the subject-matter, and we think the showing made for the temporary order was ample. The early cabbage season was a short one. The business at that time was most profitable, and quick action had to be taken by the plaintiff to protect itself against the unlawful acts of the defendants. Action was taken as soon as definite, and positive information was obtained by the plaintiff thereof. It is true that such restraining order without notice is not lightly to be...