Meyer v. First National Bank of Coeur D'Alene

• Decision Date: 11 June 1904
• Citation: 77 P. 334,10 Idaho 175
• Parties: MEYER v. FIRST NATIONAL BANK OF COEUR D'ALENE
• Court: Idaho Supreme Court

77 P. 334

10 Idaho 175

MEYER v. FIRST NATIONAL BANK OF COEUR D'ALENE

Supreme Court of Idaho

June 11, 1904

INJUNCTIONS-DISSOLUTION WITHOUT NOTICE-WILL NOT ISSUE AGAINST NATIONAL BANKS-SUFFICIENCY OF SHOWING.

1. When the adverse party moves to dissolve a temporary injunction upon the papers on which it was granted, no notice is required to be given to the party who obtained the injunction: Thayer v. Bellamy, 9 Idaho 1, 71 P. 544, approved and followed.

2. That portion of section 5242, United States Statutes (Comp. Stats 1901, vol. 3), which provides that "No attachment injunction, or execution shall be issued against such association (national bank) or its property before final judgment in any suit, action or proceeding in any state county or municipal court," is a complete bar to the issuance of any such writ or order from a state court against a national banking association.

3. Complaint and affidavits examined and held sufficient to authorize issuance of injunction against all defendants except one named as a national bank.

(Syllabus by the court.)

APPEAL from District Court in and for Kootenai County. Honorable Ralph T. Morgan, Judge.

Plaintiffs filed their complaint and affidavits praying a temporary injunction. On this showing a temporary injunction was issued without notice to defendants. Upon application of defendants without a counter showing and without notice to the plaintiffs, the injunction was dissolved, from which order plaintiffs appealed. Order modified.

Order affirmed as to the defendant bank and reversed as to defendant Varnam. Costs awarded to appellants.

Charles L. Heitman, for Appellants.

The temporary restraining order in this cause should not have been dissolved by the district court because it appeared to the court that irreparable injury would be sustained by the party applying therefor, and there was an urgent necessity for restraining said respondents, there being no other adequate remedy. The temporary restraining order in this case was not to afford a remedy for the past injuries, the appellants not praying for damages, but to prevent imminent future and continued injury. (4 Field's Lawyer's Briefs, sec. 252; Fonda etc. Ry. Co. v. Olmstead, 84 A.D. 127, 81 N.Y.S. 1041.) The general rule as to the dissolution of injunctions granted against several defendants jointly is that a dissolution will not be allowed until all the defendants implicated in the charge have fully answered, denying the equities of the bill. The rule is based upon the necessity of protecting the rights of complainant by retaining the injunction until the personal knowledge of all the defendants has been tested as to the facts alleged in the bill, and until this is done complainant has a right to insist upon the protection of the court. (High on Injunctions, sec. 1528; also Page v. Vaughan et al., 133 Cal. 335, 65 P. 740.) The defendant failed to apply for the dissolution of the injunction in compliance with the long-established rules of equity. If the injunction be applied for before the answer it must necessarily be sustained on affidavit, and the defendant may resist it on the counter-affidavits; or if it has been obtained ex parte, he may move to dissolve it on counter-affidavits, or may wait until he has filed his answer and then move to dissolve. (Adams' Equity, p. 356; Marks v. Weinstock Lubin & Co., 121 Cal. 53, 53 P. 362.) When the statute says "without notice" in section 4295 it does not mean "without appearance," which must be legally made by the defendant before he can voluntarily place himself within the jurisdiction of the court; and section 4892 should govern and control the appearance under section 4295, because said last section--4295--does not prescribe by what means the trial court shall acquire jurisdiction. (Vrooman v. Li Po Tai et al., 113 Cal. 302, 45 P. 470.) To entitle a defendant to the dissolution of an injunction, he must deny the entire equity of the bill, directly and without evasion. (High on Injunctions, sec. 1475.) It was not necessary to show that the defendants were insolvent to entitle plaintiffs to an injunction against the raising of the level of the street in front of his hotel. (Schaufele v. Doyle et al., 86 Cal. 107, 24 P. 834; Crescent City Wharf etc. Co. v. Simpson et al., 77 Cal. 286, 19 P. 426.) An unlawful conspiracy to operate by continuous unlawful acts to the injury of the plaintiff or his property rights is a nuisance which equity will enjoin. (Plant v. Woods, 176 Mass. 492, 79 Am. St. Rep. 330, 57 N.E. 1011, 51 L. R. A. 340.) Restrictive covenants in deeds, leases and agreements limiting the use of land in a specified manner or prescribing a particular use, which create equitable servitudes on the land, will be specifically enforced in equity by means of an injunction, not only between the immediate parties, but also against subsequent purchasers with notice. (Pomeroy's Equity Jurisprudence, secs. 1339, 1342.) Nor is it necessary that the covenant whose enforcement is sought should run with the land so as to be binding in law upon purchasers, since equity will restrain purchasers with notice of the covenant from doing any act in violence of its terms, although the covenant may not run with the land, so that no action at law could be maintained thereon against purchasers. (High on Injunctions, sec. 1152; Smithers v. Fitch et al., 82 Cal. 153, 22 P. 935; Mott v. Ewing et al., 90 Cal. 231, 27 P. 194; Bispham's Principles of Equity, sec. 435. p. 560.) That one may have relief for trespass, it is enough to show bona fide possession of the premises, under claim and color of title. (Kellogg v. King et al., 114 Cal. 378, 55 Am. St. Rep. 74, 46 P. 166.)

Fred L. Burgan, for Respondents.

The injunction should have been dissolved for the further reason that state and county courts have no authority and are forbidden to issue an injunction against a national bank. (See U. S. Rev. Stats., 43d Cong. 1873-75, p. 1019, sec. 5242; Chesapeake Bank v. First Nat. Bank of Baltimore, 40 Md. 269, 17 Am. Rep. 601.) The injunction was granted without notice to the defendants and a peremptory writ was issued, not an alternative, and no time or place was fixed when the defendants might make a showing why the injunction should not issue, and after service of summons and return by sheriff, and the service of the writ of injunction on all of the defendants, the respondents applied to the court for a dissolution of the same upon the files and records as used by the appellants to secure the order of injunction, and as the records show that respondents introduced no evidence, filed no answer, but made their motion purely upon the records made by the appellants, respondents submit that their proceeding was entirely within "the long-established rules of equity," and in strict conformity with the statutes of Idaho as construed by the supreme court of this state. (Rev. Stats., sec. 4295; Thayer v. Bellamy, 9 Idaho 1, 71 P. 544; Leitham et al. v. Cusick et al., 1 Utah 242.) The matter of continuing or dissolving an injunction is largely within the sound discretion of the court, and will not be reversed by the appellate court unless gross abuse of such discretion is shown. (Mark v. Weinstock, Lubin & Co., 121 Cal. 53, 53 P. 362, cited by appellants; High on Injunctions, 899.)

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

The facts are stated in the opinion.

AILSHIE, J.--

This action was commenced against the First National Bank of Coeur d'Alene and S. A. Varnam. Plaintiffs filed their complaint and supported the allegations thereof by five separate affidavits, and on the showing so made the district judge issued an injunction against defendants, enjoining and restraining them from further commission of the acts threatened and of which the plaintiffs complained. The injunction was served upon the defendants on the eleventh day of January, 1904, and thereafter, and on the thirteenth day of the same month, the defendants applied to the judge who ordered the writ for a dissolution thereof. This motion was made without notice to the plaintiffs and upon the papers used in obtaining the injunction in the first instance. After hearing the application of the defendants, the district judge made an order dissolving the injunction upon the grounds that it had been issued "without sufficient ground and that no sufficient ground to warrant interposition of the court of equity is alleged in the complaint and moving papers of the plaintiff herein, and plaintiffs have a plain speedy and adequate remedy at law." From the order thus...