Simmermaker v. International Harvester Co.
| Decision Date | 17 June 1941 |
| Docket Number | 45526. |
| Citation | 298 N.W. 911,230 Iowa 845 |
| Parties | SIMMERMAKER et al. v. INTERNATIONAL HARVESTER CO. et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Cedar County; John T. Moffit, Judge.
Plaintiffs appeal from an order striking an amendment to their petition and dissolving a temporary writ of injunction.
Reversed.
M. C Hamiel, of Tipton, for appellants.
France & France, of Tipton, for Phillip Liebsohn and Sid Liebsohn.
For an understanding of the questions involved, it will be necessary for us to summarize the pleadings. On June 30, 1939 plaintiffs-appellants filed their verified petition in equity against the International Harvester Co. alleging that appellants own certain real estate in the city of Tipton which they had leased to one Chrysler for a period of five years beginning June, 1938; that Chrysler sublet the premises to the Marak-Steffer Implement Co. who entered into possession and installed fixtures such as shelving, counters etc., with the understanding that they should become a part of the real estate and belong to appellants; that when said fixtures were installed they became a part of the realty and appellants are the sole owners thereof; that the International Harvester Co. took from said implement company a chattel mortgage which included the fixtures owned by appellants; that said mortgagee threatens to remove the fixtures and would do so unless restrained; that appellants have no plain, speedy, and adequate remedy at law. A temporary writ restraining the removal of said fixtures was asked, ordered and issued.
On January 5, 1940, appellants, pursuant to leave asked and obtained, filed a verified amendment to their petition alleging that since the granting of the temporary writ, the Marak-Steffer Implement Co. was thrown into involuntary bankruptcy; that the trustee in bankruptcy sold the hardware stock and fixtures of the bankrupt to Phillip Liebsohn; that the fixtures in the building did not at any time belong to the bankrupt, but appellants are the unqualified owners thereof; that Liebsohn is attempting to dispose of said fixtures and will do so unless restrained therefrom. Sid Liebsohn was alleged to have some connection with Phillip. The amendment prayed for a temporary writ restraining the Liebsohns from removing the fixtures. This amendment was presented to the presiding judge who ordered the issuance of a temporary writ restraining the Liebsohns from removing the fixtures, upon the filing of a $1,000 bond, which appellants furnished.
On January 12, 1940, the Liebsohns (herein referred to as appellees), without having filed any answer, filed a motion to strike the amendment, and to dissolve the temporary injunction. The motion, which was not verified, contains no denial of any of the allegations of the petition or amendment but alleges that the International Harvester Co. waived the mortgage executed to it by the bankrupt and turned the property over to the trustee in bankruptcy. Appellees' motion further states that the amendment to petition shows upon its face that the Marak-Steffer Implement Co. is now an involuntary bankrupt and that the trustee in bankruptcy has taken possession of the assets of the company and that any claim appellants might have against appellees is solely cognizable in the bankruptcy court.
On February 15, 1940, appellants filed written objections to proceeding to a hearing on the motion to dissolve the injunction mainly because the allegations of the petition as amended were in no manner denied. These objections were overruled, whereupon appellants filed a long resistance to appellees' motion to strike and dissolve the injunction, in which the allegations of the motion are denied. It was also alleged that the fixtures involved were not listed in the bankruptcy schedules and that no proceedings were had in the bankruptcy court to secure title to the fixtures.
Appellees' motion to strike and dissolve was argued and submitted on February 15, 1940. No evidence was offered in support thereof. On August 10, 1940, the trial court sustained the motion, from which ruling and judgment plaintiffs have appealed.
A large part of appellants' brief is devoted to the contention that the motion to dissolve the injunction should be considered as a demurrer to appellants' petition as amended. There is considerable authority for the proposition that in the absence of any answer or any evidence, a motion to dissolve a restraining order admits the allegations of the petition and the motion is in effect a demurrer. II High on Injunctions, 4th Ed., p. 1476, sec. 1470; 32 C.J. p. 427, § 731 1/2 ; 28 Am.Jur. p. 490, sec. 319. Appellants admit that this rule has probably never before been expressly recognized by this court. Our statute, section 12524, Code 1939, provides that a motion to dissolve the injunction may be made " either before or after the filing of the answer." It was said in Keister v. Bengtson, 193 Iowa 425, 430, 187 N.W. 4, that the rule contended for by appellants does not apply in this state, by virtue of this statute. It is to be noticed that in the Keister case, however, evidence was heard in support of the motion to dissolve. This question is dealt with in Burlington, C. R. & N. Ry. Co. v. Dey, 82 Iowa 312, 343, 48 N.W. 98, 12 L.R.A. 436, 31 Am.St.Rep. 477, and Hayes v. Billings, 69 Iowa 387, 28 N.W. 652. The Hayes case recognizes that ordinarily an injunction will not be dissolved even after the filing of an answer, where the allegations of the petition are not denied by that answer. This is the rule generally. II High on Injunctions, 4th Ed., p. 1477, sec. 1471. The latest pronouncement of this court dealing with the question is Sioux City Night Patrol v. Mathwig, 224 Iowa 748, 277 N.W. 457, where an answer was filed denying the allegations of the petition and the court concluded that a subsequent motion to dissolve should not be treated as a demurrer.
Appellees concede in their written brief on more than one occasion that their motion to strike and dismiss " is in effect a motion to dismiss or an equitable demurrer." Since both parties to the case treat the motion as a demurrer, we are justified in so doing. It follows that appellees' motion should not have been sustained unless appellants' petition as amended fails to state a cause of action entitling them to the restraining order as against appellees.
It is well recognized that the ruling on a motion to dissolve a temporary...
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