Price v. Grice

• Decision Date: 31 December 1904
• Citation: 79 P. 387,10 Idaho 443
• Parties: PRICE v. GRICE
• Court: Idaho Supreme Court

79 P. 387

10 Idaho 443

PRICE v. GRICE

Supreme Court of Idaho

December 31, 1904

LEASE-LEGAL TITLE TO LIVESTOCK-SALE BY LESSOR-ACCOUNTING-TEMPORARY RESTRAINING ORDER-ALLEGATIONS ON INFORMATION AND BELIEF-UNDERTAKING-DEMURRER-AFFIDAVIT-PRACTICE-REMEDY AT LAW-PARTNERSHIP.

1. Where B. and B. lease certain real estate and personal property consisting of livestock and farming implements to G for a term of five years, on condition that they shall receive one-half of the grain raised on said premises over and above the amount required to feed such livestock, and one-half of the increase and growth of such livestock or one-half of the price for which the same may be sold, the lessors are entitled to an accounting from the lessee each year for their half of the surplus grain, and are entitled to an accounting for one-half of the proceeds of sales of livestock.

2. Where a lease for a term of five years provides for the sale of the increase of certain livestock, one-half of the amount received therefor to go to the lessors and one-half to the lessee, the lessors are entitled to receive their one-half thereof whenever such livestock is sold.

3. Where the principal allegations in a verified complaint are made on information and belief, and the sources of information and basis of belief are not stated in the complaint but are stated in an affidavit filed in the case an injunction may be granted thereon if the facts warrant it.

4. Where a restraining order is granted holding the matter in statu quo until a hearing thereon is had, and the hearing is had and the restraining order is continued in force upon condition that the plaintiff give a proper undertaking in a certain sum named, the action of the judge will not be reversed, for the reason that no undertaking was required prior to the hearing. It is error to grant a temporary injunction without requiring a proper undertaking.

5. A judge at chambers has no authority to hear and pass upon a demurrer.

6. Under the provisions of section 4288, Revised Statutes, where the facts are in dispute, the granting or dissolving of an injunction is within the sound discretion of the court.

7. The right to a preliminary injunction is generally addressed to the sound discretion of the court to be exercised according to the circumstances of each case.

8. Where the application for dissolving a preliminary injunction is heard upon the complaint and answer, it was not error for the judge to permit the plaintiff at the hearing to file an affidavit showing the sources of information and basis of belief of the allegations of the complaint which were stated therein on information and belief.

9. Upon a proper showing an injunction may issue to temporarily restrain an act which will result in great damage to the plaintiff although the injury is not irreparable and notwithstanding the plaintiff may have other remedies following Staples v. Rossi, 7 Idaho 618, 65 P. 67.

10. Where B. and B., who are mother and son, each owned certain real estate and personal property consisting of livestock and farming implements, joined in a lease to G. leasing to him such real estate and personal property, B. and B. are not necessarily partners, and under the provisions of the lease involved in this action, B. had a right to sell and dispose of the property belonging to him included in said lease and such purchaser would be entitled to all of the rights that said B. had under the terms of said lease.

(Syllabus by the court.)

APPEAL from the District Court of Latah County. Honorable E. C Steele, Judge.

Application to dissolve temporary injunction. Denied. Order affirmed.

Order sustained. Costs of this appeal awarded to respondent.

Stewart S. Denning, for Appellant.

The facts alleged necessarily must be alleged positively, not merely on information and belief. Where a verified complaint, instead of an affidavit, is used on motion for an injunction, only the positive allegations and those on information and belief, where the sources of information and the grounds of belief are stated can be taken as true. (Gaines v. Stroufe, 117 F. 965; Foster v. Retail Clerks' International Protective Assn., 39 Misc. (N. Y.) 48, 78 N.Y.S. 860; 2 Current Law, top p. 444.) An injunction is inoperative until the undertaking required by the statute be given. (Elliott v. Osbourne, 1 Cal. 396; Heyman v. Landers, 12 Cal. 107; McCracken v. Harris, 54 Cal. 81.)

Forney & Moore, for Respondents.

Injunction will issue to restrain temporarily an act which will result in great damage to the plaintiff, although the injury is not irreparable, and notwithstanding that other remedies lie on behalf of the plaintiff. (Staples et al. v. Rossi, 7 Idaho 618, 65 P. 67; Wilson v. Eagleson, 9 Idaho 17, 71 P. 613; Gilpin v. Sierra Nev. Con. Min. Co., 2 Idaho 696, 23 P. 547, 1014.) An interlocutory injunction is not a matter of strict right. Its issuance rests in the sound discretion of the court, and the exercise of this discretion in granting and refusing the injunction will not, as a general rule, be reviewed on appeal or otherwise controlled or interfered with. (Washington etc. Ry. Co. v. Cocur d'Alene Ry. etc. Co. et al., 2 Idaho 439, 17 P. 142, 4 L. R. A. 409, and cases cited in the opinion of the court on page 441 [2 Idaho].) Nonjoinder of parties to an action is not in issue on an application for an injunction. (Rev. Stats. 1887, sec. 4113.) There is no nonjoinder of parties. (Rev. Stats. 1887, secs. 4101, 4102.) The court must in every stage of an action disregard any error or defect in the pleading or proceeding which does not affect the substantial rights of the parties (Idaho Rev. Stats., sec. 4231), and may allow a party to amend any pleading or proceeding by correcting any mistake therein. (Idaho Rev. Stats., sec. 4227.) The defendant having filed his answer to plaintiff's complaint, plaintiff was entitled, as a matter of right, to file the affidavit complained of. (Idaho Rev. Stats., sec. 4295; Thayer et al. v. Bellamy et al., 9 Idaho 1, 71 P. 544.)

SULLIVAN, C. J. Stockslager, J., and Ailshie, J., concur.

OPINION

The facts are stated in the opinion.

SULLIVAN, C. J.

--This action was brought to restrain the appellant from selling or disposing of certain personal property described in the complaint and for an accounting between the plaintiff and defendant, and for judgment for the value of any and all property unaccounted for by the defendant. Upon the verified complaint, the court ordered the defendant to show cause why an injunction should not issue as prayed for, making the same returnable at Grangeville, Idaho county, on the fifteenth day of September, 1904. And at the same time issued a temporary restraining order against the defendant, his agents and servants, restraining them from selling or transferring any of the said personal property. At that date the cause came on for hearing before the judge upon the rule to show cause why an injunction should not issue. The defendant, who is the appellant here, demurred to the complaint and answered denying the material allegations of the complaint and moved to discharge the restraining order already issued and objected to the issuance of any injunction in said case. The matter proceeded to a hearing upon the verified complaint and answer of the appellant. On the argument the defendant maintained that no bond had been required before issuing the restraining order and that paragraphs 7, 8 and 10 of the complaint (which embraced all the equities of the bill) were on information and belief, or on belief, and that the sources of information or the grounds of belief were not stated, and that there was no affidavit in aid of the complaint. Thereupon the court indicated that the motion must be sustained, and the plaintiff then asked for further time to file affidavits in support of the complaint. The court granted such application over the objection of counsel for the appellant. The plaintiff subsequently filed his own affidavit, setting up the sources of information on which he based the allegations of the complaint and the grounds of his belief, and nothing more. The court thereafter took said motion under advisement and denied the same, and directed that the temporary restraining order theretofore issued remain in force upon the plaintiff filing an undertaking to the effect that he would pay the defendant such damages, not exceeding the sum of $ 600, as he might sustain by reason of said injunction or restraining order, if the court should finally decide that the plaintiff was not entitled thereto. To all of which counsel for appellant then and there excepted. This appeal is from the order denying said motion and continuing the temporary injunction in force. For a clear understanding of this case we will here set forth the main facts out of which this action arose.

It appears from the record that on the twenty-third day of May 1903, one E. N. Brown was the owner of one hundred and sixty acres of land situated in Latah county, Idaho and also certain personal property consisting of livestock, both horses, cattle, hogs and farming implements, and that one Clara Brown, a widow, was the owner of one hundred and sixty acres of land situated in said county, and certain personal property. That on the twenty-third day of May, 1903, the said E. N. Brown and Clara Brown, as parties of the first part, and lessors, made and entered into a contract of lease with the appellant Grice, whereby they leased to the said Grice the said real estate together with said personal property for a term of five years, and appellant entered into the possession of said property, real and personal. It appears that on the sixth day of January, 1904, after the appellant had been placed in possession of said...