Walbridge-Aldinger Co. v. City of Tulsa

• Decision Date: 16 December 1924
• Docket Number: Case Number: 15169
• Citation: 1924 OK 1141,233 P. 171,107 Okla. 259
• Parties: WALBRIDGE-ALDINGER CO. et al. v. CITY OF TULSA.
• Court: Oklahoma Supreme Court

1924 OK 1141

233 P. 171

107 Okla. 259

WALBRIDGE-ALDINGER CO. et al. v. CITY OF TULSA.

Case Number: 15169

Supreme Court of Oklahoma

Decided: December 16, 1924

Syllabus

¶0 1. Injunction--Office of Temporary Injunction.

A temporary injunction embodies a restraint which continues, unless modified by the court, until the hearing of the cause, at which time it is either made permanent or discharged. A temporary restraining order has for its object the maintenance of the status quo until the court shall determine whether an injunction shall issue.

2. Same--"Mandatory Injunction."

Where the order of court is effective to transfer possession of property from defendants to plaintiff and restrains defendants from interfering with plaintiff's use of said property in the fulfillment of an alleged contract until further order of the court, such an order is a mandatory injunction.

3. Same--Necessity for Injunction Bond.

The provision of section 415, Comp. Stat. 1921, that "unless otherwise provided by special statute, no injunction shall operate until the party obtaining the same shall give an undertaking with sufficient surety," etc., is mandatory, and when an order of injunction does not contain the provision for the bond and where no bond is executed, the order is void.

4. Municipal Corporations--City as Party -- Charter Provision Dispensing with Giving of Bonds--Validity.

A provision in the charter of a city that "it shall not be necessary in an action, suit, or proceeding, in which the city is a party, for any bond, undertaking, or security to be executed in behalf of said city, but all such actions, suits, appeals, or proceedings shall be conducted in the same manner as if such bond, undertaking, or security had been given, and said city shall be liable as if such obligation had been duly given and executed", does not supersede the general statutes of the state requiring the giving of a bond where such action arises out of matters not purely municipal.

West & Petry, for plaintiffs in error.

W. B. Robinson, Langley & Langley, Aby & Tucker, Massingale & Duff, and I. J. Underwood, for defendant in error.

GORDON, J.

¶1 The appeal here is from an order of the district court of Mayes county overruling and denying the motion of plaintiffs in error to vacate an order of injunction or restraining order theretofore granted by said court in favor of defendant in error and against plaintiffs in error. The city of Tulsa was engaged in constructing a water-works system, whereby it was intended that water should be brought from Spavinaw creek in Mayes county to supply the city and its inhabitants. Walbridge-Aldinger Company had contracted with the said city to construct the conduit line for the water. After a large portion of the work was completed, disagreement arose as to the proper construction of certain clauses of the contract. The city of Tulsa, by reason of the alleged violation of the contract by Walbridge-Aldinger Company, elected to rescind the contract and to complete the work by its own efforts. In the completion of the work it claimed the right, under its contract, to use the material, machinery, and equipment of Walbridge-Aldinger Company. When this disagreement as to the construction of the contract had been in existence for some time, and the city of Tulsa was threatening to take possession of the equipment of Walbridge-Aldinger Company, the said company began an action in the District Court of the United States for the Eastern District of Oklahoma, to enjoin and restrain the said city from seizing its equipment. The application for injunction was denied by the United States court aforesaid. Thereupon Walbridge-Aldinger Company appealed to the United States Circuit Court of Appeals for the Eighth Circuit. Upon the denial of this application for injunction, the city of Tulsa began in the district court of Mayes county, Okla., an action for a temporary injunction or restraining order, having for its purpose the restraining of the defendants in that action from removing their machinery, equipment, and supplies from the right of way of the city where it had been and was being used in the construction of the water-works line, and the obtaining of the possession thereof by the city. It appears that all of this machinery, equipment, etc., was then located upon said right of way. The Pitts-Bateman Company was also made a defendant in this action; both defendants being treated alike in the allegations of the petition, and it being charged that both defendants had entered into a contract with the city and that the machinery, equipment, and supplies were the property of both defendants. In its petition, the city alleged its contract and set forth especially the provision thereof which is-- "That if defendants fail to prosecute the work undertaken and agreed to be prosecuted by them in connection with said project, and if defendants fail to furnish equipment, machinery, and material called for by said contract, plans, and specifications for use in the prosecution of said work, plaintiff may take possession and control of the equipment, material, and machinery of defendants and use and operate the same under the direction and management and supervision of plaintiff's engineer and officers and employes, in the carrying out of the contract of defendants under the plans and specifications, as aforesaid." It is further alleged that plaintiff under its said contract was in the act of taking over defendant's equipment, machinery, materials, and labor for the purpose of completing the work, when defendants began an action in the United States Court for the Eastern District of Oklahoma, to restrain and enjoin plaintiff from so doing. That said suit was tried and judgment rendered in favor of the defendant, city of Tulsa, plaintiff here. That in order to prevent plaintiff from taking charge of said machinery, materials, equipment, etc., defendants are threatening to remove same and will so remove them unless restrained by the court. Plaintiff alleges that notice to defendants would enable them to remove the property before the application for injunction could be heard. It further alleges that under plaintiff's charter, it is its own surety upon an indemnifying bond necessary to be executed in its behalf, and that, therefore, a bond is not necessary in this action. It therefore prays for a restraining order prohibiting the defendants from removing any of the equipment, materials, etc., from plaintiff's works and from interfering with plaintiff in carrying on the construction of its water pipe line. Upon presentation of this petition to the court, and without notice to the defendants, and without execution of a bond by plaintiff, the trial court, in the absence of the defendants, and upon the same date which the said petition was filed, granted an order which is as follows:

"Now on this 13th day of February, 1924, the above entitled matter comes on for hearing before the Honorable A. C. Brewster, judge of said court, at his chambers in the city of Pryor, Mayes county, Oklahoma upon the petition of plaintiff for a temporary restraining order against the defendants and against the officers, agents, employes and servants of the defendants and each of them. The plaintiff appearing by I. J. Underwood, W. B. Robinson and Langley & Langley, its attorneys. And after considering the petition of plaintiff and after hearing the testimony offered in support thereof the said judge is of the opinion and finds that the temporary restraining order asked for by plaintiff should be granted. And being advised in the premises.

"It Is Ordered, That the defendant Walbridge-Aldinger Company, a corporation, and the defendant Pitts-Bateman Company, and each of them, and the officers, agents, employes and servants of said defendants and of each of said defendants refrain from moving any equipment, machinery, or material from the works and project of the plaintiff, city of Tulsa, or from the premises of plaintiff, to wit, plaintiffs' pipe or conduit line now being constructed and built by plaintiff from the city of Tulsa, to Spavinaw creek, in Mayes county, Oklahoma. And said defendants and each of them and their officers, agents, employes, and servants are hereby enjoined from removing any equipment, machinery, and material from the premises aforesaid and from interfering in any way in plaintiff's construction and completion of its said water project. This order to be binding upon all persons interested or concerned until modified or set aside by the above entitled court or judge thereof.

"If defendants have already moved any equipment, machinery, or material from the premises where it was being used in connection with the water project of plaintiff or from the right of way of plaintiff, then defendants and each of them and their officers, agents, employes, and servants are hereby restrained and enjoined from the removal of such equipment, machinery, and material from the place where it now is, and are restrained and enjoined from interfering with plaintiff in the carrying out of and completion of its water project according to the contract, plans, and specifications thereof.

"In Witness Whereof the Honorable A. C. Brewster, Judge aforesaid, has hereunto set his hand at his Chambers at Pryor, in Mayes county, Okla., this the 13th day of February, 1924."

¶2 This order was granted on February 13, 1924, and was immediately served upon the defendants. It appears that the city at once took possession of all the material, supplies, machinery and equipment of both defendants. On February 16, 1924, the defendant Pitts-Bateman Company filed its motion to vacate or modify the order, and in this motion it sets out, in substance, that It had at no time contracted with plaintiff touching the construction of its water conduit line; that it had filed no suit in the District Court of the United States, as alleged in the petition. It alleges that it had contracted with its...