Valley Drive-In Theatre Corp. v. Superior Court In and For Pima County, DRIVE-IN
| Decision Date | 06 December 1955 |
| Docket Number | DRIVE-IN,No. 6171,6171 |
| Citation | 79 Ariz. 396,291 P.2d 213 |
| Parties | VALLEYTHEATRE CORPORATION, Petitioner, v. The SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF PIMA and Lee Garrett, a Judge thereof; and Benson Highway Theatre Corporation, Respondents. |
| Court | Arizona Supreme Court |
Udall & Udall and Jack G. Marks, Tucson, for petitioner.
Silver & Silver, Tucson, for respondents.
Valley Drive-in Theatre Corporation, as plaintiff, brought suit in the superior court of Pima County against Benson Highway Theatre Corporation, defendant, upon a conditional sales contract, alleging default on the contract and right thereunder to immediate possession of drive-in theatre equipment covered by the contract. Upon giving of a bond of $80,000 in accordance with the provisions of section 27-1603, A.C.A.1939, a writ of replevin was issued. Defendant filed a petition in the action for order enjoining the execution of the writ of replevin upon the ground that there was no default on the contract; that plaintiff therein was a competitor seeking by this means to drive defendant out of business; that plaintiff had made threats to use force in taking repossession of the equipment and had wrongfully interfered with defendant in the performance of the contract. The petition further alleged that the statutory remedy of posting redelivery bond to retain possession of the property was inadequate and that defendant would suffer irreparable damage if the relief as prayed for was not granted. After issuance of a temporary restraining order in accordance with the petition, a hearing was had as a result of which the court made findings of fact and conclusions of law and rendered judgment granting a preliminary injunction, upon the defendant giving a $100 bond, restraining and enjoining petitioner herein and its agents, including the sheriff and his deputies, from executing or enforcing the writ of replevin and ordering them to refrain and desist from repossessing the property until final judgment in the action. Plaintiff filed petition requesting a writ of prohibition to prohibit the trial court from doing any action or thing or taking any further proceeding in connection with the injunction. Alternative writ of prohibition was issued by this court.
Section 27-1603, supra, gives plaintiff in replevin the right to the possession of personal property sought to be replevied upon giving a bond payable to defendant in double the value of the property, conditioned that he will return the property to the defendant or pay its value and damages for the taking in the event plaintiff's action fails. If the plaintiff gives the aforementioned bond, defendant has the right to retain possession of the property pending the litigation by giving a like bond payable to the plaintiff. Section 27-1604, A.C.A.1939. It is plain that, under the provisions of the statute, the plaintiff has a right to take possession of the property and retain the same pending litigation if defendant gives no redelivery bond. If it develops from a trial of the case on the merits that such possession was wrongfully taken, defendant is protected with a bond in double the value of the property taken. It is likewise clear that the defendant may retain the possession and suffer no damage of any kind by giving a redelivery bond. The court by issuing the injunction has substituted an equitable remedy for the statutory method whereby a defendant may regain the possession of the property. By this procedure it has substituted for the protection of the plaintiff a $100 bond in lieu of the bond in double the value of the property as required by the statute. Our view is that equitable powers of the court cannot be used to this extent. Courts of equity are as much bound by the plain and positive provisions of a statute as are courts of law. When rights are clearly established and defined by a statute, equity has no power to change or upset such rights. 19 Am.Jur., Equity, section 454. In the case of Sparks v. Douglas & Sparks Realty Co., 19 Ariz. 123, 166 P. 285, 288, this principle was so well expressed by former justice Franklin that it is worthy of quotation:
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