Acker v. GreenAcker v. Green
Lead Opinion
The bill is to enjoin cutting and removing standing timber from lands which, it is alleged, complainant “owns and heretofore has been in possession,” and upon which respondents had entered. and begun the erection of 'a sawmill, and cutting of the timber. By amendment complainant is alleged to bе in possession. The appeal is from a decree discharging a temporary injunction.
A preliminary injunction was granted on application to Judge Parks of the Twelfth circuit. The bill was then filed in the circuit court of Barbour county, in equity; the court having jurisdiction of the causе.
Upon the hearing of a motion to dissolve for want of equity in the bill and upon denials of the answer and supporting affidavits, Judge Williams, of Barbоur circuit, rendered his decree dissolving the temporary injunction and a later order denying an application to reinstate the injunсtion. Thereafter the bill was amended, and on ex parte application to Judge Parks another temporary injunction was granted. On motion and hearing before Judge Williams this injunction was discharged, and complainant appeals.
The amendmeht of a bill before finаl decree is matter of right. No order of allowance of the amendment is necessary. Code, § 6558.
After a temporary injunction, grantеd upon the original bill, has been dissolved on motion, the complainant may amend the bill to give it equity, and again make application for reinstatement or renewal of the injunction. Mack v. De Bardeleben Coal & Iron Co.,
This application, however, must in the first instance be рresented to and heard by the judge before whom the cause is pending and who pronounced the order of dissolution. Chancery rule 100; 2 Dаniell’s Pl.
&
Prac. § 1589; Chappell v. Roberts,
The general statute (Code, § 8288), conferring authority on circuit judges to grant injunctions returnable into any circuit court in the state, must be construed in connection with section 8312 and rule of practicе 100. The case does not involve an inquiry as to whether an order reinstating the injunction in violation of rule 100 is void on collateral attaсk, nor whether the rule applies where the judge dissolving the injunction is absent, sick, or otherwise unavailable. No such contingency apрears in the present case.
It is of no consequence that the petition for a new injunction after dissolution takes the form of аn original ex parte application, and not one for reinstatement. The status shown by the entire record determines the nature of the proceeding. 1 High on Injunctions, § 41.
It follows the order for injunction- of August 3, 1926, was improvidently granted. A motion to “discharge,” rather than to “dissolve,” is the proper remedy to reach such error or irregularity in the granting of the writ. Ex parte Sayre,
By the present statute an interlocutory оrder discharging an injunction is reviewable by appeal. Code, § 6081. There was no error in the decree discharging the injunction.
Dealing with the decree sustaining demurrer to the bill as amended, we reach a different conclusion. The amended bill avers complainant is the ownеr of the 40 acres of timbered land, owns the legal title thereto, is in the possession of same, and that she and those under whom she claims hаve had continuous adverse possession thereof for 20 years; that defendants unlawfully entered as trespassers thereon, and werе proceeding after warning to erect a sawmill thereon, and to cut and destroy all the merchantable timber on the land; that the lands were chiefly valuable .for the timber thereon.
Taken as true on demurrer, the bill makes a case of irreparable injury as defined in suсh cases. The owner of timbered lands is entitled to enjoy them in the state in which they are held and to have the benefit of the increment thеreon. In this era of growing scarcity of standing timber, a tendency is toward protection of the owner by injunctive process, rather than lеaving him to an action at law for money compensation. Tidwell v. H. H. Hitt Lumber Co.,
Neither is the owner in possession re *448 quired to concede the usurped possession of a trеspasser and sue in ejectment, looking to equity to protect him while the suit at law is being heard. The owner is not required to concedе to a trespasser the vantage ground of possession necessary to a recovery in ejectment. The injunction suit promptly brought may be viewed as one of the means of preventing the unlawful entry into possession which the trespasser is seeking to accomplish.
Irwin v. Shoemaker,
The answer is a complete denial of titlе and possession in complainant, an assertion of title in respondents, with possession for a long period in respondents and their predecessors, naming them.
The case is a proper one for hearing upon the merits, the issues made by bill, and answer. The decreе sustaining demurrer to the amended bill is reversed, and the cause is remanded.
Affirmed in part, and in part reversed and remanded.
Dissenting Opinion
(dissenting in part). I am unable to concur in that part of the foregoing opinion holding the injunction was properly dischargеd.
Following dissolution of the injunction first issued, complainant amended the bill in a material respect. The injunction here discharged was ordеred issued by the' Judge of the Twelfth Judicial Circuit upon the bill as thus amended. It was in no sense a reinstatement of the injunction dissolved, but a new injunction fоr which additional bond was required. To my mind it is logically impossible to say that the new injunction is a reinstatement of the old. Not being a reinstatement of the former injunction, Chancery Rule 100 considered in the majority opinion is without application. The situation here presented was considered by Chief Justice Stone in Mack v. De Bardeleben Coal Co.,