Thayer v. Bellamy

• Decision Date: 28 January 1903
• Citation: 9 Idaho 1,71 P. 544
• Parties: THAYER v. BELLAMY
• Court: Idaho Supreme Court

71 P. 544

9 Idaho 1

THAYER v. BELLAMY

Supreme Court of Idaho

January 28, 1903

INJUNCTION PENDENTE LITE-WHEN GRANTED WITHOUT NOTICE-WHEN DISSOLVED WITHOUT NOTICE-COUNTER-AFFIDAVITS MAY BE USED.-Under section 4295 of the Revised Statutes of 1887, application to dissolve a temporary injunction may be made as follows: 1. By the defendant upon the papers on which plaintiff obtained the injunction; 2. By the plaintiff upon the papers on which defendant obtained the injunction; 3. By either party upon affidavits, with or without answer. 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, and no further showing can be made in opposition to such motion. On the other hand where any counter-showing is made by the moving party, notice of the time and place of hearing must be given, and upon such hearing the party resisting the motion may present affidavits in opposition thereto, and is entitled to have such affidavits considered by the court or judge hearing the same.

(Syllabus by the court.)

APPEAL from District Court, Custer County.

Reversed and remanded, with direction. Costs awarded to appellants.

Milton A. Brown, for Appellants.

The first point presenting itself for consideration is the right to oppose the motion to dissolve an injunction by affidavits. If an injunction be granted without notice, the defendant, at any time before the trial, may apply to the judge who granted the injunction, or to the court in which the action is brought, to dissolve or modify the same. The application may be made upon the complaint, and the affidavit on which the injunction was granted, or the answer, or upon affidavit on the part of the defendant, with or without the answer. If the application be made upon affidavits on the part of the defendant, it must be upon reasonable notice to the plaintiff, and in that case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence in addition to those on which the injunction was granted. (Rev Stats., secs. 4295, 4297; Hiller v. Collins, 63 Cal 235; Falkingburg v. Lucy, 35 Cal. 60, 95 Am. Dec. 76; Hicks v. Compton, 18 Cal. 206.) If the defendants move to vacate and dissolve the injunction on the complaint alone, then for the purposes of the motion all the allegations of the complaint are true. (Farish v. Coon, 40 Cal. 33.) Where grave questions are involved, and the dissolution of injunction may occasion serious damage, the injunction should never be dissolved. (Patterson v. Board of Supervisors, 50 Cal. 344; Gilpin v. Sierra Nevada etc. Min. Co., 2 Idaho 696, 23 P. 547, 1014.)

F. E. Ensign, for Respondents.

The rule seems to be almost, if not quite, universal, that the granting or refusing to grant, dissolving or refusing to dissolve, preliminary injunctions is left to the discretion of the district courts, and the higher courts will not interfere unless it is fully convinced that the district court has abused its discretion. (De Godey v. Godey, 39 Cal. 167; McGreery v. Brown, 42 Cal. 461; Rogers v. Lamant, 45 Cal. 184; Patterson v. Board of Commrs., 50 Cal. 344; Callet v. Central P. R. Co., 52 Cal. 65; Payne v. McKinley, 54 Cal. 532; Parrot v. Floyd, 54 Cal. 534; White v. Numan, 60 Cal. 406.)

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

OPINION

AILSHIE, J.

This action was commenced May 21, 1902, by plaintiffs filing their complaint, and on the same day they filed the affidavit of William H. Walker, supporting all the material allegations of the complaint. The complaint, among other things, alleges the citizenship of plaintiffs, ownership and right of possession of certain mining claims situated in the county of Custer, the wrongful and unlawful entry of defendants into and upon said mining claims through and by means of a tunnel run by defendants into the said mining claims of plaintiffs, and the wrongful and unlawful extracting and removing of ores therefrom. Thereafter, and on the fourth day of June, 1902, the district judge, upon said complaint and affidavit, and without notice to defendants, granted plaintiffs a temporary injunction, restraining the commission of the alleged acts pending the action. In October, 1902, the defendants filed their verified answer and cross-complaint, denying parts of the complaint, and setting up new matters in defense of the action. Among other things, it is admitted by the answer and alleged in the cross-complaint that plaintiffs are the owners of, and entitled to the possession of, the mining property described in plaintiffs' complaint, and that defendants have entered into and upon said claim by means of a tunnel; but they allege in defense thereof that said tunnel is following the dip of a vein, the apex of which is in and upon the mining claim and property of the defendants adjoining plaintiffs' claims. On the thirteenth day of October, 1902, the defendants, in open court, moved the court, upon the complaint and affidavit of Walker, on which the injunction had been granted, and their verified answer and cross-complaint, for a dissolution of the restraining order previously granted. The plaintiffs, whose attorneys were present in court, resisted the motion, and offered in opposition thereto the affidavits of J. A. McFadden, Fred A. Stimson, and W. H. Walker. The court rejected these affidavits, and refused to consider them, to which action and ruling of the court plaintiffs excepted, and assign the same as error.

In view of the conclusions we have reached in this case, it will be unnecessary for us to examine into the merits of the showing as made by the pleadings and affidavits filed and offered for the consideration of the trial judge upon the issuance of the injunction, and upon the motion to dissolve same. The vital question here presented is the right of the plaintiffs to oppose by affidavits the motion of defendants to dissolve the injunction.

Section 4295 of the Revised Statutes of 1887 provides: "If an injunction be granted without notice, the defendant, at any time before the trial, may apply to the judge who granted the injunction, or to the court in which the action is brought to dissolve or modify the same. The application may be made upon the complaint and the affidavit on which the injunction was granted, or the answer or upon affidavit on the part of the defendant, with or without the answer. If the application be made upon affidavits on the part of the defendant, it must be upon reasonable notice to the plaintiff, and in that case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the injunction was granted." It is now contended by appellants that, where the defendants offered their verified answer and cross-complaint in opposition to the complaint and affidavit on which the injunction had been granted, plaintiffs at once, by virtue of said section 4295, became entitled, as matter of law, to notice, and the right to have all affidavits presented by them considered on such hearing. Section 118 of the California Practice Act was the same as section 4295, above quoted, with the exception that the words "or the answer," following the first clause of the second sentence of our section, do not appear in the California statute. Section 532 of the California Code of Civil Procedure is the same as section 118 of the Practice Act. The California supreme court, in case of Falkinburg v. Lucy, 35 Cal. 52, 95 Am. Dec. 76, in construing section 118 of the Practice Act, in a case similar to the one here under consideration, used the following language: "The plaintiff is entitled to an injunction at the time of issuing the summons upon the complaint alone, if it makes a proper case and is verified in the manner stated in the one hundred and thirteenth section; but, if he asks for an injunction at any time thereafter, he must do so upon affidavits. If the injunction has been granted without notice to the defendant, he may move to dissolve--1. Upon the complaint and affidavits, or, in other words, the papers, whatever they may have been, upon which the injunction was granted; or 2. Upon the papers upon which it was granted, and affidavits on the part of defendant, with or without the...