Lowery v. Cole

• Decision Date: 21 February 1913
• Citation: 130 P. 410,47 Mont. 64
• Parties: LOWERY ET AL. v. COLE ET AL.
• Court: Montana Supreme Court

130 P. 410

47 Mont. 64

LOWERY ET AL. v. COLE ET AL.

Supreme Court of Montana

February 21, 1913

Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge.

Action by Andrew Lowery and another against Mary Cole and another. From an order refusing to dissolve an injunction, defendants appeal. Affirmed.

O'Hara Edwards & Madeen, of Hamilton, for appellants.

J. D Taylor and L. O. Johnson, both of Hamilton, for respondents.

BRANTLY C.J.

Appeal from an order refusing to dissolve an injunction. On January 20, 1912, the plaintiffs were indebted to the defendant Mary Cole in the sum of $949.44, evidenced by a judgment recovered in the district court of Ravalli county on September 2, 1911. They were also indebted to one Louise J. Hageman. A portion of this indebtedness, the exact amount being not then definitely determined, was secured by a mortgage upon lots 15 and 16, in block 21, in Hamilton, Ravalli county. The plaintiffs, desiring to effect satisfaction of the judgment and also to procure a discharge of so much of their indebtedness to Hageman as was secured by the mortgage entered into a contract in writing with the defendant Cole, under the terms of which they agreed to convey to her the said lots by warranty deed at a price to be fixed by three arbitrators, one chosen by each of the parties to the contract, and the third by these two. The defendant Cole agreed on her part to accept the conveyance at the price so to be fixed, and in consideration therefor (1) to pay so much of the Hageman indebtedness as was secured by the mortgage; (2) to apply the remainder to the satisfaction of the judgment; and (3) to pay the balance, if any then remaining, to the plaintiffs. The arbitrators were selected and fixed the price of the lots at $1,750. The amount of the Hageman incumbrance was then definitely ascertained to be $778. In addition to these facts, the complaint alleges that the plaintiffs thereupon executed a warranty deed to defendant Cole; that they tendered it to her and demanded that she pay the mortgage indebtedness due Hageman; that she refused to accept the deed or to pay the said indebtedness and has ever since refused to do so; that the plaintiffs have ever since been ready to deliver the said lots to this defendant according to the terms of the contract; that on the _______ day of _______, 1912, this defendant caused an execution to be issued upon the judgment and to be placed in the hands of the defendant George See, the sheriff of Ravalli county; that, under and by virtue of it, he had seized certain personal property of plaintiffs, consisting of live stock, hay, grain, farming implements, household goods, etc.; that he has advertised it for sale to satisfy the judgment; and that, unless he is restrained from so doing, he will proceed to complete the sale and satisfy the judgment. It is further alleged by way of conclusion that the plaintiffs are without a plain, speedy, or adequate remedy at law, and will suffer irreparable injury if the sale is carried to completion. The prayer is for a decree requiring the defendant Cole to perform the contract according to its terms, and for an injunction to restrain the sale pending the action. Attached as an exhibit is a copy of the contract. The allegations are upon positive knowledge. The complaint was filed on November 8th. The court issued the injunction as prayed, but without notice; the sale being advertised for that day. On December 6th the defendants moved the court to vacate the order granting the injunction on the grounds that the facts stated do not warrant the granting of the writ, and that, in any event, they do not exhibit such an emergency as justified the granting of it without notice. The motion was supported by an affidavit by the defendant See, and by an answer by both defendants. The affidavit does not controvert any of the facts alleged in the complaint. The answer admits all of the allegations therein made, except that it denies a tender of the deed by the plaintiffs. It alleges in this connection that the defendant Cole, at the time the value of the lots was fixed by the arbitrators, was, and ever since has been, ready and willing to accept the deed from plaintiffs and to carry out the terms of the contract, but that the plaintiffs refused, and ever since have refused, to deliver it or the possession of the lots.

It is a settled rule in this jurisdiction that the granting or refusing to grant a preliminary injunction in a particular case rests in the discretion of the district court, and that this court will not interfere with the exercise of that discretion unless there has been a manifest abuse of it. Bennett Bros. v. Congdon, 20 Mont. 208, 50 P. 556; Boyd v. Desrozier, 20 Mont. 449, 52 P. 53; Forrester et al. v. Boston & Mont., etc., Co., 21 Mont. 555, 55 P. 229, 353.

In exigent cases, before the defendant has answered, the writ may be granted without notice either upon the complaint alone or upon affidavits, if...