Weaver v. Richardson

• Decision Date: 02 June 1913
• Docket Number: 709
• Citation: 21 Wyo. 343,132 P. 1148
• Parties: WEAVER v. RICHARDSON
• Court: Wyoming Supreme Court

132 P. 1148

21 Wyo. 343

WEAVER v. RICHARDSON

No. 709

Supreme Court of Wyoming

June 2, 1913

ERROR to the District Court, Albany County, HON. CHARLES E CARPENTER, Judge.

The action was brought by Annie F. Richardson against Adelaide J Weaver to recover possession of certain real estate. It was alleged in the answer as a separate defense that the plaintiff and defendant had entered into an agreement for the sale of the premises by the plaintiff to the defendant and that defendant should take immediate possession of the premises, and the prayer was for judgment for damages for the failure of the plaintiff to comply with the contract, or, in the alternative, for specific performance thereof. A motion of the defendant for an injunction to protect her possession pending the action was denied, and from such order denying the injunction the defendant brought error. The other material facts are stated in the opinion.

Order reversed.

N. E Corthell and V. J. Tidball, for plaintiff in error.

Although a party is not entitled to an injunction in a case of a single trespass unaccompanied by force or involving any other element of equitable jurisdiction, it is well established that injunction is an appropriate remedy for a trespass committed with force, or for a continuing trespass or repeated trespasses. (Martin v. Sheep Co., 12 Wyo 432; 3 Pomeroy's Eq. Juris. 1357; 1 High on Inj. 356; 28 Ency. Law, 595; R. R. Co. v. Fiske, 123 F. 760; King v. Stuart, 84 F. 546; Nichols v. Jones, 19 F. 855; Smith v. Bivens, 56 F. 352; Ry. Co. v. McConnell, 82 F. 65; Tie Co. v. Stone, (Mo.) 117 S.W. 604; O'Brien v. Murphy, (Mass.) 75 N.E. 700; Pollock v. Ship Bldg. Co., 56 O. St. 655; 47 N.E. 582; Wilson v. Harrisburg, (Me.) 77 A. 787; Rhoades v. McNamara, (Mich.) 98 N.W. 392.) The right to the remedy is incidental to possession. (38 Cyc. 1014, 1018-1019; Tobin v. French, 93 Ill.App. 18; Holland v. San Antonio, (Tex.) 23 S.W. 756; Beaufort Land & I. Co. v. Lumber Co., (S. C.) 68 S.E. 637; Kellogg v. King, (Cal.) 46 P. 166; La Chapelle v. Bubb, (Wash.) 69 F. 481.) This remedy is peculiarly applicable for the purpose of preserving the condition of the title and occupancy pending litigation. (22 Cyc. 821; Cohen v. Delavina, 104 F. 946; Newton v. Levis, 79 F. 715; R. R. Co. v. U. S. 124 F. 156; Ry. Co. v. Carolina C. & I. Co., 151 F. 477.) It has frequently been granted to protect the rights of a party in possession under a contract of sale. (Hadfield v. Skelton, 66 Wis. 634, 29 N.W. 639; Hornung v. Herring, 74 Neb. 637, 104 N.W. 1071; Carter v. Warner, 2 Neb. 688, 89 N.W. 747.) And in cases to protect the actual possession of a party against forcible intrusion by another. (Heaton v. Wireman, 74 Neb. 817, 105 N.W. 634; W. U. Tel. Co. v. Ry. Co., 3 F. 430; Zimmerman v. McCurdy, (N. D.) 106 N.W. 125.)

In this case the court was proceeding in the usual and ordinary way to determine the facts disputed by the pleadings, and the plaintiff undertook by force to retake possession of the property. It would be difficult to conceive of a stronger case for injunction. (Hinckel v. Stevens, 45 N.Y.S. 678; Pokegama S. P. Co. v. Lumber Co., 86 F. 528; McHugh v. Bridge Co., (Ky.) 65 S.W. 456.) A party is not deprived of the remedy because the wrongful act has been already committed; the injunction will be mandatory to the extent necessary to restore the status of the parties, and put the injured party in the position occupied before the commission of the wrongful act. (22 Cyc. 742; Clock Co. v. Kochersperger, (Ill.) 51 N.E. 629; Wheelock v. Noonan, 108 N.Y. 179; U. S. v. Brighton Ranch Co., 26 F. 218.)

Frank E. Anderson, for defendant in error.

Whether a temporary injunction shall be granted, or, having been granted, whether it shall be dissolved, are matters resting in the sound discretion of the court, and that discretion will not be interfered with unless it clearly appears to have been abused. (Collins v. Stanley, 15 Wyo. 282, 88 P. 620, 123 Am. St. Rep. 1022; Anderson v. Englehart, 108 P. 977; Stowe v. Powers, (Wyo.) 116 P. 576; Williams v. Los Angeles R. Co., (Cal.) 89 P. 330.) The granting of an injunction is the exercise of original and not appellate jurisdiction. (1 High on Inj., Sec. 42.) A court of last resort is not allowed to enlarge or extend its jurisdiction to the granting of injunctions pending in inferior courts where the power is not granted by the Constitution. (Id.) No injunction had been granted by the District Court, and it is not a writ necessary to the complete exercise of the appellate and revisory jurisdiction of this court. Further, the denial of the injunction was not a judgment or final order of the District Court, and hence this court had no jurisdiction to grant the injunction pending the proceeding in error.

The motion for injunction and the affidavit supporting it are insufficient. There was no supplemental answer or crosspetition filed in the case in the nature of a counter-claim, so as to entitle the defendant to an injunction under the statute. (Comp. Stat. 1910, Sec. 4913.) The pleadings do not show that the defendant counter-claimed for specific performance. It is not sufficient in an application for injunction in case of trespass to allege merely the absence of an adequate remedy at law and that the damage will be irreparable, but facts must be stated to enable the court to determine those matters. (Indian River &c. Co. v. Trans. Co., 28 Fla. 387, 29 Am. St. Rep. 263.) Neither the motion nor the affidavits show that the defendant below had any title to the property or any right to the possession, nor is it shown that the plaintiff below is unable to respond in damages for the injury complained of. The only allegation tending to show injury is the statement in the affidavit in support of the motion that personal property of the defendant was removed. An injunction will not be granted in the first instance except upon a prima facie case and upon positive averments of the equities of the applicant. (1 High on Inj. Sec. 34; 16 Ency. Law, (2nd Ed.) 360-361; 10 Ency. Pl. & Pr. 951-953; Randall v. Freed, (Cal.) 97 P. 669; Tifft Co. v. Med. Inst. (Wash.) 101 P. 1081.) It is necessary to warrant the injunction that the title of the applicant be established, or at least a right to possession superior to that of the adverse party, and if the title is in doubt, the injunction, if granted, should be only temporary until the title can be determined at law. (1 High on Inj., Sec. 70; Caldwell v. Bush, 6 Wyo. 342; State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 131.) A mere naked trespasser will not be protected by a restraining order. (Central Trust Co. v. Wabash &c. Co., 25 F. 1; Waring v. Munson, 17 N.W. 745; Woodford v. Alexander, (Fla.) 17 So. 658.) The facts given in evidence upon the hearing of the motion did not entitle the defendant to the remedy sought. It is not the function of an injunction to take the premises from the peaceable and quiet possession of the owner, and place the same in the possession of a mere trespasser. (1 High on Inj. Sec. 355; Williams v. Long, 129 Cal. 229, 61 P. 1087; Arnold v. Bright, 41 Mich. 210; 2 N.W. 17; Ry. Co. v. R. R. Co., 61 Mich. 9, 27 N.W. 715; Flood v. Goldstein Co. (Cal.) 110 P. 916.) The defendant in error had a right to enter the premises at any time she saw fit, and since she entered them peaceably the possession should not be taken from her by injunction.

POTTER, JUSTICE. SCOTT, C. J., and BEARD, J., concur.

OPINION

POTTER, JUSTICE.

This is a proceeding in error for the review of an order denying a motion for injunction pendente lite. The action was brought to recover possession of real estate and damages for withholding the same, and the defendant applied by motion supported by affidavit for an injunction restraining the plaintiff from interfering with the defendant's possession of the property during the pendency of the action. At the time the motion was filed and heard the pleadings in the cause consisted of an amended petition, an amended answer, and a reply. By the amended petition the plaintiff Annie F. Richardson, alleged that she was the owner of and entitled to the immediate possession of the property, and that the defendant, Adelaide J. Weaver, had unlawfully kept her out of possession and excluded her from the rents, issues and profits of the premises since the 20th day of April, 1910. It was alleged in the amended answer "as a second defense" that on or about October 28, 1909, the plaintiff and defendant entered into an agreement as follows: "Said plaintiff agreed for the sum of $ 500 to sell said premises, for which this action is brought, to said defendant, and said defendant agreed to purchase said premises for said price. That thereupon said defendant delivered to Adda Ulen, who was the duly authorized agent of both plaintiff and defendant for the purpose of this sale, $ 20 in escrow as part purchase price of said premises. That by the terms of said agreement the balance of said purchase price amounting to the sum of $ 480 was to be paid when said plaintiff should furnish a clear title to said premises and execute and deliver a good and sufficient warranty deed conveying said premises to said defendant, and that said $ 20 should be held in escrow by Adda Ulen until such time as said deed should be furnished. That it was further agreed between plaintiff and defendant that defendant should take immediate possession of said premises under said agreement and should hold possession thereof until plaintiff should convey said premises to her by said deed above mentioned." It was further alleged that, "thereupon this defendant, relying upon the agreement above set out, without fraud or collusion on her part, and with the full knowledge and consent of plaintiff, and at plaintiff's...