Lawrence Warehouse Co. v. Rudio Lumber Co.

Decision Date10 September 1965
Docket NumberNo. 9556,9556
Citation89 Idaho 389,405 P.2d 634
PartiesLAWRENCE WAREHOUSE COMPANY, a Corporation, Plaintiff-Respondent, v. RUDIO LUMBER COMPANY, an Idaho Corporation, Henry Marthin, Individually, and Clyde Sterner, Individually, and as officers, agents and employees of Rudio Lumber Company, Defendants-Appellants.
CourtIdaho Supreme Court

Peter G. Leriget, Moscow, Raymond L. Givens, Boise, for appellants.

Miller & Knudson, Court d'Alene, for respondent.

TAYLOR, Justice.

Plaintiff (respondent) brought this action to obtain a permanent injunction to prevent alleged trespassing by defendants (appellants) upon lands to which plaintiff claimed exclusive right of possession by virtue of a lease held by it as lessee. The lease--attached to the complaint as exhibit A--executed by Tensed Manufacturing, Inc., as lessor, described certain real property in the village of Plummer in Benewah county, and a dry kiln located thereon, and provides that the premises are 'to be occupied for the conduct of a field warehouse on a tenancy from month to month, * * * for the aggregate rental of One Dollar ($1.00).' The trespass complained of was alleged in the complaint as follows:

'That the defendant, Rudio Lumber Company, and its agents and employees, and in particular, Henry Martin and Clyde Sterner and Henry Martin, individually, and Clyde Sterner, individually, have repeatedly, against the protests of the plaintiff, trespassed upon the warehouse land, buildings and equipment of the plaintiff, have destroyed locks and cut chains, have entered into the dry kiln under the lease, as shown by Exhibit 'A', have stored lumber thereon, have threatened to operate said dry kiln, all of which is contrary to the rights of the plaintiff herein.'

The complaint also alleged damage resulting from the trespass and that plaintiff had no plain, speedy or adequate remedy at law. The prayer was for a temporary injunction; that upon hearing the injunction be made permanent; and that plaintiff recover $5,000 damages.

Plaintiff filed with the complaint a motion for preliminary injunction and an affidavit made by a representative of the plaintiff--the same person who verified plaintiff's complaint. The affidavit alleged that defendants made repeated trespasses into the warehouse area and 'have deposited and/or removed lumber therefrom without the right or authority from this plaintiff;' and that defendants have threatened to continue such trespasses and have threatened to operate the dry kiln located upon the leased premises; and that such trespasses have damaged and continue to damage plaintiff.

The motion for preliminary injunction was noticed for hearing on July 14, 1964. On that date defendants appeared and filed a verified answer and counterclaim. The answer denied the allegations of alleged trespasses, threatened trespasses, and damages. In their counterclaim defendant alleged that no property remains in possession of plaintiff upon which it can claim a warehouseman's lien; that the Tensed company has gone out of business; that plaintiff's lease has been abandoned and superseded by storage contract between plaintiff and Stitzinger Lumber Company; that plaintiff no longer stores any goods upon the leased premises for either the Tensed or Stitzinger companies; and that plaintiff's interference with defendants' business operations has damaged defendants in the sum of $150,000.

The clerk's minutes for July 14, 1964, show the following:

'The plaintiff submitted the matter based upon the verified Complaint, and the Affidavits in support thereof.

'The defendants made an offer of proof and moved the Court to call witnesses in support thereof.

'The Court accepted the offer of proof and denied oral testimony.

'The Court heard counsel and ordered that the injunction be issued.'

The order granting the preliminary injunction recites that the motion therefor was made under and pursuant to IRCP 65, and

'the Court having examined the Complaint and the Affidavit in support of the Motion for Preliminary Injunction; and having heard the offer of proof of the defendants, there being no counter-affidavit of file or of record herein; * * *.'

After posting and approval of the required bond in the sum of $20,000, the writ of injunction was served upon defendants on July 31, 1964.

July 23, 1964, defendants filed an amended answer and counterclaim which contained the same denials as the original answer and in substance the same affirmative allegations of the original counterclaim, and in addition alleged that the defendant Rudio Lumber Company is the possessor of the premises described in plaintiff's lease; that the officers of the plaintiff corporation had repeatedly threatened to put the defendants out of business and that plaintiff's actions in the premises have been malicious; and prayed, in addition to $150,000 actual damages, punitive damages in the sum of $50,000.

It is evident from the complaint that the principal end sought by plaintiff in the action was the injunction prayed for, and that the preliminary injunction gave plaintiff all the relief it sought in the action, except incidental damages. This is further shown by the record made by plaintiff in this court. In its opposition to defendants' petition for early hearing of this cause, plaintiff represented to this court that pursuant to plaintiff's motion the preliminary injunction was dissolved September 16, 1964, on the ground 'that the need for the same no longer existed.'

In Rowland v. Kellogg Power & Water Co., 40 Idaho 216, 225, 233 P. 869 (1925), this court said:

'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 where its effect would be such as to give the defendant the relief he seeks without bringing the cause to trial.'

The above was quoted with approval in Gilbert v. Elder, 65 Idaho 383, 387, 144 P.2d 194 (1943). In that case both parties claimed the right to remove timber from the land involved. The opinion recites that a hearing was had, but the nature or extent of the hearing is not disclosed. In disposing of the issue the court said:

"* * * due process of law has been variously held to mean a law which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial.' 16 C.J.S., Constitutional Law § 567, b., p. 1143.

'Here, of course, the Pack River Lumber Company was not interested in the land itself. It was, and is, as a matter of fact, interested solely in the timber standing on the land--cutting and converting it into merchantable lumber. And, as above pointed out, the effect of the order complained of by petitioners was to give the company all the relief it really sought on the hearing of an application, which by no stretch of the imagination, could be held to be a trial of the cause on its merits within the meaning of the 'due process' rule.' 65 Idaho at 388, 144 P.2d at 196.

In Mountain States Tel. & Tel. Co. v. Jones, 75 Idaho 78, 267 P.2d 634 (1954), this court held that an interlocutory injunction could be issued only after a full hearing before the court, and Justice Thomas, who dissented on other grounds, added:

'The discretionary power vested in the court to grant injunctive relief in such cases is not an arbitrary one; it is a sound and legal discretion which should be exercised with great caution; the requirements of caution and sound legal discretion can only be had upon a full hearing; it is indeed a delicate power which requires an abundance of caution, deliberation and sound discretion based upon a full disclosure of the facts which demonstrate with reasonable certainty and persuasiveness the probability of confiscation; it cannot be exercised soundly or with caution without hearing all the relevant facts on the issues joined with reference to the probability of confiscation.' 75 Idaho at 86, 267 P.2d at 638.

Our present Rules of Civil Procedure (adopted in 1958) permit the granting of a temporary restraining order to prevent immediate and irreparable injury to the applicant pending a hearing of the application for preliminary injunction. IRCP 65(b). This was not such a case. Here the application was for a preliminary injunction, under IRCP 65(a), the propriety of which encompassed the entire controversy between the parties.

In numerous cases we have held that in adopting a statute from another jurisdiction our legislature is presumed to have intended to adopt the prior construction of such statute by the courts of the jurisdiction from which it was taken, and if such construction is reasonable it will be followed by the courts of this state. 1 The reasoning underlying the foregoing rule of statutory construction is applicable to the construction of our recently adopted (1958) IRCP where they are the same or parallel to the federal rules from which they were taken. Moreover one of the arguments advanced by the proponents of the new rules was that the courts of our state would have available a body of federal rules decisions as a guide to the application of the rules. Rule 65(a) being identical with the like numbered federal rule from which it was taken, the construction of the rule by the federal courts prior to our adoption of it, is presumed to have been adopted also. Though such presumption may not be mandatory in all cases the federal construction of the rule will be regarded as most persuasive.

In Sims v. Greene, 161 F.2d 87 (3rd Cir. 1947), the circuit court set aside a preliminary injunction on the ground that it had been granted upon the pleadings and affidavits filed by the parties and without opportunity to the adverse party to produce oral testimony. The court said:

'The issuance of a preliminary injunction under such circumstances is contrary not only to the Rules of Civil Procedure but also to the spirit which imbues our judicial...

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  • Farm Service, Inc. v. U.S. Steel Corp.
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    ...equivalent to giving the defendant the relief it sought in the action. The same rule was reiterated in Lawrence Warehouse Co. v. Rudio Lumber Co., 89 Idaho 389, 405 P.2d 634 (1965). In that case we also held that the burden of proving its right to a preliminary injunction was upon the The r......
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    ...Compton, 101 Idaho 328, 334 n. 1, 612 P.2d 1175, 1181 n. 1 (1980) (considering I.R.C.P. 60(b)); Lawrence Warehouse Co. v. Rudio Lumber Co., 89 Idaho 389, 395-96, 405 P.2d 634, 637-38 (1965) (considering I.R.C.P. 65(a) and I.R.C.P. The interplay between motions made under Rules 12(b)(4) and ......
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