Gunsch v. Gunsch, 7397

• Decision Date: 18 December 1954
• Docket Number: No. 7397,7397
• Citation: 69 N.W.2d 739
• Parties: Leona GUNSCH, Plaintiff and Respondent, v. Dan GUNSCH, John Gunsch, and David Gunsch, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 739

69 N.W.2d 739

Leona GUNSCH, Plaintiff and Respondent, v. Dan GUNSCH, John Gunsch, and David Gunsch, Defendants and Appellants.

No. 7397.

Supreme Court of North Dakota.

Dec. 18, 1954.

Rehearing Denied April 21, 1955.

Syllabus by the Court.

1. A temporary restraining order may be granted at the commencement of an action when it satisfactorily appears to the court by the complaint and affidavits supporting it that sufficient grounds exist therefor.

2. A court of equity will protect the rightful claimant's right to possession against a trespasser and when he has established his legal right and the fact of its violation, the rightful claimant is in general entitled to a final injunction to prevent the recurrence of the trespass.

3. Every court of record may punish as for civil contempt any person guilty of misconduct by which a right or remedy of a party to a civil action may be defeated, impaired or prejudiced, or for any disturbance to any lawful order, judgment, or process of the court. Section 27-1003, NDRC 1943.

4. Advice of counsel is generally no defense to a proceeding for contempt and where the action upon such advice is deliberate, willful, and contumacious it will not be considered even in mitigation of punishment.

5. A receiver may be appointed by the court in which an action is pending between parties jointly interested in property on the application of any party whose right or interest in the property or fund or proceeds thereof is probable, and when it is shown that the property or fund is in danger of being lost, removed or materially injured. Section 32-1001, Subdivision 1, NDRC 1943.

6. Where crops are planted by a trespasser who wrongfully assumes to hold possession and threatens to harvest and market the crops for his own benefit, the appointment of a receiver is proper.

7. On appeal in such an action the trial court retains jurisdiction to protect and preserve the property which is the subject of the litigation until final determination thereof.

J. K. Murray, Bismarck, for appellants.

Floyd B. Sperry, Golden Valley, for respondents.

GRIMSON, Judge.

This is one of a series of related actions arising out of the unfortunate troubles of the David Gunsch family. The plaintiff, Leona Gunsch, commenced this action on April 2, 1953, for an injunction, for an accounting and to quiet title. She alleges that she is the owner of the South Half (S 1/2) and the Northeast Quarter (NE 1/4) of Section Thirteen (13), and the South Half (S 1/2) of the Southeast Quarter (SE 1/4) and the South Half (S 1/2) of the Southwest Quarter (SW 1/4) of Section Twelve (12), all in Township One Hundred Forty-three (143, North, Range Eighty-nine (89) West of the 5th. P.M. Mercer County, North Dakota, subject to a balance due on the purchase price; that said land had been bought by her husband, Tony Gunsch, from his father, David Gunsch; that she obtained a divorce from Tony Gunsch in which action the court decreed and transferred unto her said real estate subject to the rights of said David Gunsch under the contract for deed; that there has been paid on said contract $4,000; that plaintiff has offered to pay the balance of $12,000 and interest which was refused by said David Gunsch; that the defendants have, without any authority or right, removed the 1952 crops from the premises and pastured the land; that the defendants kept her tenants off of the premises by threats of force and violence; that they removed a portion of the buildings therefrom and continued repeated trespasses thereon; that they have instituted numerous legal proceedings for the purpose of vexing and annoying the plaintiff and that unless restrained they will continue to keep the plaintiff and her tenant from possession of the property and deprive her of the income therefrom; that she will suffer irreparable damages from their actions and that she has no adequate remedy at law. She asks for a temporary injunction pending the action and a permanent injunction thereafter restraining the defendants from interfering with the plaintiff or her agents in the possession and enjoyment of these premises. She further asks for an accounting of the crops for 1952 and that the defendants be required to set forth their claims to the land and that the same be declared null and void. That has been done in other actions.

Upon the filing of the complaint and the supporting affidavits of plaintiff's tenant and her attorney, an order to show cause why a temporary restraining order should not be granted was issued. The court concluded, 'That it satisfactorily appears to the court that good cause exists for an injunction, pending said action, and that from said complaint and said affidavits, and the records herein, the defendants shall be so restrained and enjoined.' On the hearing on the order to show cause the restraining order was continued.

The defendants filed a joint answer alleging ownership in the land in question in the defendants, John Gunsch and Dan Gunsch, subject to the contract for deed with the defendant, David Gunsch; alleging they purchased the land and some cattle and machinery from Tony Gunsch on or about the 1st day of April 1951 and that prior action is pending to determine the conflicting claims thereto and counterclaiming for the value of improvements in the way of breaking and seeding the land for 1953.

The evidence shows that Tony Gunsch had farmed the land in question for several years and was in possession thereof. On February 19, 1951, Tony bought it from his father, David Gunsch, on contract, for $16,000. On March 10, 1951, the plaintiff Leona Gunsch, Tony's wife, commenced a divorce action against him. On that date a temporary injunction was issued restraining Tony from disposing of any of his property. On June 25, 1952, the divorce action was heard and on June 28, 1952, a judgment was filed granting Leona Gunsch a divorce from Tony Gunsch and in a division of the property she was awarded Tony's interest in the section of land bought by him from his father, subject to that contract of purchase and some cash, cattle and household furniture. The evidence further shows that the defendants, after the divorce was granted put forth the claim that John Gunsch and Dan Gunsch had bought the land from Tony on March 15, 1951. Tony denied that and made arrangements for the farming of the premises in 1951.

In the spring of 1951, Tony leased 60 or 70 acres to one Carl Neuberger, and was to get one-third of the crop. Then he made arrangements for the seeding of the remainder of the fields and secured the assistance of Neuberger and his brothers, Dan Gunsch and John Gunsch, to seed the crop. Tony was to receive one-third of the crop Neuberger seeded and harvested. His brothers were to use Tony's combine in harvesting the crop they put in for him and have the use of that combine for their own crop in return for the assistance to Tony in raising the crop that year. Tony was to receive all of the crop. Out of that crop $4,100 was paid to David Gunsch as a first payment on the land contract. Tony did not receive anything.

In the spring of 1952 Tony continued his attempt to exercise control and entered into a lease with Carl Neuberger for the farming of most of the farm land on the section. David, Dan and John, however, interfered with the carrying out of that lease. The defendants, Dan Gunsch and John Gunsch, entered upon the land early in the spring and farmed it in 1952.

As soon as Leona Gunsch acquired Tony's interest in the land by divorce decree in 1952, she engaged one Kees to look after this section of land and the cropping of it for her. John Gunsch, however, interfered and told Kees to stay away from that land in rather threatening language.

On January 22, 1953, Leona leased the land to one Fred Flemmer. He made preparations to farm it but was prevented by John and Dan Gunsch. He testified they told him that, 'If I didn't want to get hurt I had better stay out.' Again Dan and John entered upon the land early. 'They came out like a cyclone and they came out with five tractors, didn't give anyone a chance.' Counsel for Dan and John wrote Neuberger letters warning him to keep off the land or 'you are liable to get hurt.'

In addition to the claimed trespasses by the defendants upon the real property in question they instituted two actions against plaintiff involving her possession of and right to the cattle that had been awarded to her by the divorce decree. Furthermore, John Gunsch and Dan Gunsch brought an action to determine adverse claims to this land, and David Gunsch brought an action to foreclose the contract.

All these actions, together with the instant case, were by stipulation, tried together in July 1953. No objection was made to the form of any of the actions. Different judgments were entered determining the principal issue raised in each case. All of these actions were decided favorably to the plaintiff in this action and have been appealed to this court.

In the case of Gunsch v. Gunsch, N.D., 67 N.W.2d 311, 325, to determine adverse claims, this court very thoroughly discussed the evidence as bearing on the ownership and possession of the premises. Reference is hereby made thereto. Dan and John, after the divorce decree, claimed to have bought under an oral contract the premises and the other property involved, from Tony Gunsch on March 15, 1951. On that this court says:

'The evidence is voluminous, often conflicting, contradictory and even confusing. When the evidence is considered as a whole it does not spell out a clear-cut agreement between the parties. If any negotiations took place it appears that whatever talks there were between the plaintiffs and Tony and their father, David Gunsch, their primary purpose was to attempt to keep Leona Gunsch from procuring an interest in Tony's property; but the negotiations, whatever they were, never amounted to an oral agreement between the parties. * * * The plaintiffs...