Gilbert v. Elder, 7159

• Citation: 144 P.2d 194,65 Idaho 383
• Decision Date: 23 December 1943
• Docket Number: 7159
• Parties: BERNICE H. GILBERT and HARRIETT M. JARRETT, Plaintiffs, v. ED. S. ELDER, Judge of the District Court of the Eighth Judicial District of the State of Idaho, in and for the County of Boundary, and PACK RIVER LUMBER COMPANY, a corporation, Defendants
• Court: Idaho Supreme Court

144 P.2d 194

65 Idaho 383

BERNICE H. GILBERT and HARRIETT M. JARRETT, Plaintiffs, v. ED. S. ELDER, Judge of the District Court of the Eighth Judicial District of the State of Idaho, in and for the County of Boundary, and PACK RIVER LUMBER COMPANY, a corporation, Defendants

No. 7159

Supreme Court of Idaho

December 23, 1943

1. Review

The review upon application to review district court's action could not be extended further than to determine whether district court has regularly pursued its authority. (I.C.A., secs. 13-205, 13-208.)

2. Injunction

A temporary injunction will not usually be allowed where its effect is to give plaintiff the principal relief he seeks without bringing the cause to trial, and neither should the preliminary injunction be stayed where its effect would be such as to give defendant the relief he seeks without bringing the cause to trial.

3. Injunction

As growing timber is part of land on which it stands, wrongful destruction thereof is an injury to the land itself, not adequately remediable by action at law.

4. Constitutional law

"Due process of law", when applied to judicial proceedings, means a law which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial.

5. Injunction

Where staying of temporary injunction restraining defendant from cutting and removing timber from tract had effect of granting defendant the relief it sought without trial, district court exceeded its jurisdiction in issuing the stay.

Original application to review action of Hon. Ed. S. Elder, Judge of the District Court of the Eighth Judicial District, in staying temporary injunction. Writ of review granted. Order staying temporary injunction annulled.

W.J. Nixon for plaintiffs.

The temporary injunction was properly and lawfully granted. (6-402, I.C.A.)

Remedy of injunction is governed by statute. (Staples v. Rossi, 7 Idaho 618 at 622.)

Plaintiffs state case for granting of injunction. (Castelbert v. Harte, 15 Idaho 399 at 403; Rowland v. Kellogg Power Co., 40 Idaho 216, 233 P. 869.)

Application for writ of review states essential grounds. (Sec. 13-202, I.C.A.; People v. Lindsay, 1 Idaho 394; Dahlstrom v. Portland Min. Co., 12 Idaho 87, 85 P. 916; Kootenai Co. v. State Board of Equalization, 31 Idaho 155, 169 P. 936; Neil v. Public Utilities Comm., 32 Idaho 44, 178 P. 271; Beus v. Terrell, 269 P. 593.)

Plaintiffs have no right of appeal from order sought to be reviewed. (Sec. 11-101, I.C.A.; Blaine County v. Jones, 45 Idaho 358, 262 P. 509; Rhodes v. Craig, et al, 21 Cal. 419; Avery v. Superior Court, 57 Cal. 247.)

Everett E. Hunt for defendants.

An injunction may, in the discretion of the court, be dissolved in a proper case, even though no answer has been filed. (Encyclopaedia of Evidence, vol. 7, p. 316; Blue Creek Land & Livestock Company v. Battle Creek Sheep Company, 52 Idaho 728; Fourth Decennial Digest, vol. 16, p. 1666; Consolidated People's Ditch Co. v. Foothill Ditch Co., 269 P. 916.

An injunction may properly be dissolved upon terms or upon giving bond. (32 C.J., pp. 427-428; 32 C.J., pp. 394-395; Kilgore v. Norman, 119 F. 1006, 1007, aff. 120 F. 1020, 56 C.C.A. 683; Am Jur., vol. 28, p. 439.)

An injunction will be dissolved when there is doubt as to plaintiff's right to have it continued and its continuance would be a great hardship to the defendant. (Edison Electric Light Co. v. Buckeye Electric Co., 59 F. 700; Ex p. Montgomery, 24 Ala. 98; State v. Judge, 36 La. Ann. 394; Ex p. Schwab, 98 U.S. 240; Detroit, etc., R. Co. v. Newton, 61 Mich. 33.)

This matter cannot be reviewed since petitioner has a right to appeal. (See 11-201, I.C.A.; sec. 13-202, et seq., I.C.A.).

HOLDEN, C.J., BUDGE, J., Alilshie, Givens and Dunlap, JJ., concur. BUDGE, J., specially concurring. Givens, J., concurs.

OPINION

HOLDEN, C.J.

-- September 18, 1943, Bernice H. Gilbert and Harriett M. Jarrett commenced a suit in the District Court for Boundary County against the Pack River Lumber Company, a corporation, alleging, among other things, they were the owners of a certain tract of timber land located in that county, the primary purpose of the suit being to permanently restrain and enjoin the company from cutting and removing timber from said tract of timber land. October 9, 1943, plaintiffs Gilbert and Jarrett moved that court for an order requiring defendant to show cause why it should not be temporarily enjoined and restrained from cutting and removing the timber from said lands, the application being supported by affidavits. On the same day the application was granted and an order to show cause was issued, hearing being noticed for October 12, 1943. On that day the matter was heard, each party, being represented by counsel. At the conclusion of the hearing, an Order was entered directing the issuance of an injunction, pursuant to which an injunction issued October 13, 1943, enjoining and restraining the Pack River Lumber Company, pending final hearing of the cause on its merits, from removing the timber from said tract of timber land. On the next day, to-wit, October 14, 1943, an order was filed (dated October 13, 1943) entitled "Order Allowing Supersedeas Bond or Staying of Writ of Injunction," by the terms of, which, in substance and effect, the injunction theretofore issued, as aforesaid, was ordered stayed, effective upon the giving of a bond in the sum, of $ 5,000.00, which was thereafter promptly given, as required.

October 25, 1943, Bernice H. Gilbert and Harriett M. Jarrett, plaintiffs in said suit in said district court, made application to this court seeking a review by this court of the said action of the said district court in staying the said injunction, issued as aforesaid, alleging, among other things, that said "order allowing Supersedeas Bond or Staying of Writ of Injunction out of the said district court was and is illegal and void and in excess of the jurisdiction vested in said (the said district) court, or the judge thereof.

October 26, 1943, an order was entered herein directing the issuance of a writ of review to review the said action of the Hon. Ed. S. Elder, pursuant to which a writ of review, in the usual form, was issued, directed to the said the Hon. Ed. S. Elder, the judge of the said district court returnable November 4, 1943. November 2, 1943, a transcript of the record and proceedings in said cause commenced and pending in said district court as aforesaid, was certified into this court as required by sec. 13-205, I.C.A. November 4, 1943, the Pack River Lumber Company, the real party in interest, filed its answer, traversing the material allegations of the petition.

"The review upon this writ can not be extended further than to determine whether the inferior tribunal, . . . has regularly pursued the authority of such tribunal . . ." (Sec. 13-208, I.C.A.; Sweeny v. Mayhew, 6 Idaho 455 56 P. 85.; McConnell v. State Board etc., 11 Idaho 652, 83 P. 494; Lansdon v. State Board of Canvassers, 18 Idaho 596, 111 P. 133; Northwest v. Light etc. Co. v. Alexander, 29 Idaho 557, 160 P. 1106; Beus v. Terrell, 46 Idaho 635, 269 P. 593; State Ins. Fund v. Hunt, 52 Idaho 639, 17 P.2d 354; Hawley v. Bottolfsen, 61 Idaho 101, 98 P.2d 634, 636.)

The Pack River Lumber Company claims the right to continue to cut and remove timber from the tract of land in question upon an alleged offer by the company to purchase the tract and an alleged acceptance of such offer by petitioners, which, of course concedes petitioners were, prior to the alleged offer and alleged acceptance, the owners of the tract. By the time the cause would be tried on its merits, the company might have cut and removed all the timber from the tract, so that if judgment should finally go against the company and in favor of the petitioners upon a trial of the cause on its merits, the Company would, indirectly, have compelled petitioners to sell their property to it whether they would or not, and accept whatever monetary consideration it was willing to pay, after it got the timber or sue at their own expense to recover damages.

Moreover, the record discloses that what the lumber company is principally interested in, is getting the timber standing on the land. Hence, the staying of the temporary injunction gives the company an opportunity to get that, the principal relief it seeks, in advance of the trial of the case. Neither plaintiff nor defendant should be given the principal relief sought in advance of the trial of the cause. As this court in Rowland v. Kellogg Power & Water Co., 40 Idaho 216, 225, 233 P. 869, held:

"A temporary injunction will not usually be allowed where its effect is to give the plaintiff the principal relief he seeks without bringing the cause to trial, neither should a preliminary injunction be dissolved (nor stayed, we think) where its effect would be such as to give the defendant the relief he seeks without bringing the cause to trial."

It is contended, however that cutting and removing the timber from the tract of land in question does not constitute an irreparable injury in that petitioners have an adequate remedy in the form of an action at law for damages. Touching that matter, we direct attention to Pardee v. Camden Lumber Co. (W.Va. Supreme Ct. of Appeals), 70 W.Va. 68, 73 S.E. 82; 43 L. R. A. (N.S.) 262, a case, in its facts, similar to case at bar. In the course of discussing the question as to whether cutting and removing timber is adequately remediable by an action at law, the West Virginia court expresses itself thus:

" . . we must see to what extent the remedies afforded by courts of law and equity protect and vindicate the right of an owner of property to keep it in such condition as he desires. If we find the general object to be the maintenance...