Wilson v. Boise City

• Decision Date: 07 February 1900
• Citation: 60 P. 84,7 Idaho 69
• Parties: WILSON v. BOISE CITY
• Court: Idaho Supreme Court

60 P. 84

7 Idaho 69

WILSON v. BOISE CITY

Supreme Court of Idaho

February 7, 1900

INJUNCTION-NOTICE OF APPLICATION.-Under the provisions of section 4293 of the Revised Statutes, an injunction that enjoins the general or ordinary business of a municipal corporation cannot legally issue except on notice. The terms "general" and "ordinary," as used in said section, are comprehensive enough to include the collection of assessments made for payment of the construction of sewers. Section 4287 of the Revised Statutes defines "injunction" as being a writ or order requiring a person to refrain from a particular act. Such writ cannot be issued to restrain an act already done.

COMPLAINT-RELIEF.-Held under the allegations and demands of the complaint, that the only relief that could be granted thereunder is a writ of injunction. When no answer is filed, and the complaint does not demand it, judgment or decree cannot be entered removing the cloud from the title to real property cast thereon by reason of a tax sale, which sale the action was brought solely to restrain, without first amending the complaint, and demanding therein that relief. An action brought solely to restrain a tax sale should be dismissed when it is shown that such sale has already taken place, an injunction being the only remedy demanded in the complaint, and no other issues being raised upon which other relief can be granted to plaintiff.

ISSUES MADE.-In an action where the demand for an injunction is only incidental to the main purpose or object of the suit, and other relief is demanded and comes within the issues made the relief demanded may be granted, although the necessity for an injunction has disappeared.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Motion to dismiss this appeal sustained. Costs of appeal awarded to respondent.

John T Morgan and Hawley & Puckett, for Appellants, cite no authorities upon the point decided by the court.

C. C. Cavanah and S. B. Kingsbury, for Respondents.

It is a general rule that if it is shown that the acts, the performance of which it is sought to be enjoined, are actually performed since the dissolution of said temporary injunction, the court, on appeal, has nothing before it where the bill was for injunction solely. (Kerr v. Riddle, 31 S.W. 328; Texas etc. Co. v. Interstate Transp. Co., 155 U.S. 585, 15 S.Ct. 228; Reynolds v. Everett, 144 N.Y. 189, 39 N.E. 72; Langmaid v. Reed, 159 Mass. 409, 34 N.E. 593.) A writ of injunction "is used to prevent future injury, rather than to offer redress for wrongs already committed, and it is therefore to be regarded more as a preventive than as a remedial process." (1 High on Injunctions, 3d ed., sec. 3; 1 High on Injunctions, 2d ed., sec. 3; Chicago etc. Co. v. Dey, 35 F. 866, 1 L. R. A. 744; 2 High on Injunctions, 3d. ed., sec. 1495; Delgar v. Johnson, 44 Cal. 182; City of Alma v. Loehr, 42 Kan. 368, 22 P. 424; Gardner v. Stroever, 81 Cal. 148, 22 P. 483, 6 L. R. A. 90; Callan v. Board of Fire Department, 45 La. Ann. 673, 12 South, 834; Bellevue Water Co. v. Stockslager, 4 Idaho 636, 43 P. 568.) An injunction to suspend the general and ordinary business of a corporation cannot be granted without due notice of the application therefor to the proper officers of the corporation. (Idaho Rev. Stats., secs. 4293, 4294; Wilkie v. Rochester St. R. Co., 12 Hun. 242; Larson v. Winder, 14 Wash. 109, 53 Am. St. Rep. 864, 44 P. 123; Ex parte Martin, 13 Ark. 198, 58 Am. Dec. 321; Atchison etc. R. Co. v. Fletcher, 35 Kan. 236, 10 P. 596; Androvett v. Brown, 15 How. Pr. 75.)

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This action was brought to enjoin Boise City, a municipal corporation, and Carrie E. Myers, as city tax collector of said corporation, from selling or offering for sale at a city assessment sale certain real estate of plaintiffs, against which a special assessment has been levied by Boise City for the payment of the costs and expenses of the construction of sewers along the alleys abutting upon the lots and property of the plaintiffs, who are appellants here. This action was commenced on the sixteenth day of June, 1899 in the district court in and for Ada county, and upon an ex parte showing made before the judge at chambers in Boise county a temporary injunction was issued restraining said city, its officers, agents, and attorneys, and the defendant Mrs. Carrie E. Myers, from selling or offering for sale said lots and premises, or any part thereof, to pay said taxes or assessments, until further order of the court. On the twenty-fourth day of June, 1899, the respondents filed a demurrer in which it is stated as follows: "1. That the said complaint does not state facts sufficient to constitute a cause of action; 2. That the said complaint does not state facts sufficient to show that the plaintiffs have any cause of action; 3. That there is no equity in the bill." Also, on the last-mentioned date, counsel for respondents moved to dissolve said injunction on the following grounds, to wit: "1. That the bill of complaint herein does not state facts sufficient to constitute jurisdiction in equity; 2. That the bill of complaint herein does not state facts sufficient to constitute a cause of action, or to entitle the plaintiffs to relief in equity, or to entitle the plaintiffs to an injunction, or to entitle plaintiffs to a preliminary injunction or restraining order, or to any relief whatever, either in equity or otherwise, and that there is no equity in the bill; 3. That the said bill of complaint herein contains no equity; 4. That the said honorable A. E. Mayhew had no jurisdiction or authority to grant the injunction herein, or sign the order for said injunction; 5. That it appears and is manifest from the records and papers and files herein that the plaintiffs are not entitled to a preliminary injunction or restraining order, and that there are doubtful questions of law at issue and involved, and concerning which the issues are tendered by the bill of complaint, that must first be disposed of by hearing on the merits, and that the issue of a restraining order would interfere with the governmental and administrative matters of the city government of Boise City, and cause great inconvenience to the public. This motion will be made at the time appointed by the court for the hearing on the question of the sustaining and continuing the preliminary injunction, and will be made on the papers and files herein." The motion was heard upon the files and affidavits of M. Alexander, mayor of said city, and Mrs. Carrie...