Strand v. Steppa

• Decision Date: 01 March 1922
• Docket Number: 4967
• Citation: 186 N.W. 959,45 S.D. 244
• Parties: C. V. STRAND, Plaintiff and appellant, v. JOHN STEPPA and John Heim, Defendants and Respondents.
• Court: South Dakota Supreme Court

45 S.D. 244

186 N.W. 959

C. V. STRAND, Plaintiff and appellant,

v.

JOHN STEPPA and John Heim, Defendants and Respondents. South Dakota Supreme Court Appeal from Circuit Court, Marshall County, SD Hon. Frank Anderson, Judge #4967--Reversed Harold W. King Attorneys for Appellant. No appearance for Respondent. Opinion filed March 1, 1922

POLLEY, J.

Action to foreclose a contract to convey real property. Defendant appears to have been put into possession of the premises at the time of making the contract, June 1, 1920, but vacated the same during the following October. This action was commenced in December, 1920, and in January, 1921, plaintiff reentered and took possession of the premises. On the 18th of April, 1921, defendant applied for, and the court granted an order enjoining the plaintiff from occupying or in any way asserting any right to the possession of any part or portion of the said premises. From such order plaintiff appeals to this court.

It is the contention of appellant that the remedy by restraining order cannot under our statute be granted to a defendant, but to a plaintiff only, that such remedy is purely statutory, and that the statute makes no provision for the granting of a restraining order on behalf of a defendant.

The right to grant injunctional relief is found in section 2424, Rev. Code, which reads as follows:

"When Injunction will be Granted. An injunction may be granted in either of the following cases:

"1. When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or

"2. When, during the litigation, it shall appear that the defendant is doing, or threatens or is about to do, or procuring or suffering some act to be done in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.

"3. And when, during the pendency of an action, it shall appear by affidavit that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction may be granted to restrain such removal or disposition."

This section, in terms, makes no provision for granting a restraining order...