Gobbi v. Dileo

111 P. 49 | Or. | 1910

Lead Opinion

Mr. Justice Eakin

delivered the opinion of the court.

1. Plaintiff has filed a motion to affirm the judgment for the reason that no bill of exceptions had been filed within the meaning of the statute and rulings of the court. By order of the court, the original bill of exceptions is certified to this court in lieu of a copy which appears to be only a transcript of the court reporter’s shorthand notes of the trial. It is not in any sense a bill of exceptions as to any errors relied on other than the motion for a directed verdict. See Bigelow v. Columbia Gold Mining Co., 54 Or. 452 (103 Pac. 56, 1007). And this transcript is not certified or identified as containing all the evidence submitted prior to the motion. But, considering it as such, the brief of plaintiff admitting it to be the stenographer’s notes extended, there is but one question before us, viz.: Did the plaintiff prove a cause sufficient to be submitted to the jury? The first question suggested is: In whose possession and at whose risk was the wood after the alleged service of the injunction? An interlocutory injunction does not determine the merits of the case or the rights of the parties, but merely seeks to preserve the status quo of the property pending the trial, and will not change its status. High, Injunctions, §§ 5, 5a. The writ has a purely personal effect—a judicial process operating in personam. Section 417, B. & C. Comp.; 1 Spelling, Ex. Rem. § 1.

2. And the order signed in this case only restrained defendants from doing certain acts, viz., that they desist from cutting, removing, or disposing of the wood. It could not have the effect to transfer the title or possession of the wood to plaintiff. As a rule equity will not interfere by interlocutory injunction to change the possession of real property, the title being in dispute. High, Injunction, § 355. Nor is it a proper remedy for recovering possession of personal property: San Antonio Water Co. v. Bodenhamer, 133 Cal. 248, 251 (65 Pac. 471); Toledo A. A. & N. Mich. Ry. v. Detroit L. & N. R. R., 61 Mich. 9, 11 (27 N. W. 715); Welsch v. Belleville Sav. Bank, 94 Ill. 191. And the possession remained after the alleged service of the writ where it was at that time unaffected by the writ. The wood was cut from the land, the title to which was in dispute, and practically conceded to be in the possession of defendant in the writ, and the wood remained on the land: Barton v. Fisk, 30 N. Y. 166, cited by plaintiff, is not in point, as the effect of the injunction there was to change the possession of the property from defendant to plaintiff, and the same is true in the case of Alexander v. Colcord, 85 Ill. 323. The distinction between those cases and the one before us is maintained in Sutherland, Damages (3 ed.) §§ 527, 528. Therefore the injunction, if issued and served, did not operate to deprive defendants in the suit of the possession of either the land or the wood. The obligation of the undertaking is that the sureties shall pay to defendant all damages and costs which may accrue by reason of the injunction if the same be wrongful. Therefore the damages, for which the sureties are liable, are such as defendants suffered by reason of being prevented from removing or selling the wood. The wood still remained in defendant’s possession, and, if removed by others, it was not plaintiff’s, fault.

3. This only disposes of the damages for the value of the wood. There still remains the claim for damages for the loss of the hire of the scow which was there to take the wood on November 20th. The complaint makes no contention that there was either liability upon the bond or damage incurred prior to the execution of the bond which is alleged to be December 4th. The allegation is “that upon the issuance of said restraining order and the filing of said undertaking, to wit, December 4, 1903, * * the defendants * * were prohibited and prevented from taking * * said cordwood, and were on account thereof compelled to and did at that time, to wit, on or about December 4, 1903, leave 171 cords thereof. * * That said restraining order was served on defendants therein on the 4th day of December, 1903, by the sheriff of Wahkiakum County, Washington.” And it is further alleged that the scow had been procured prior to the issuance of the restraining order, and was being loaded with the wood at the time the restraining order was served on the defendants as aforesaid, to wit, on or about December 4, 1903. These allegations are not substantiated by the proof. The expense for the scow was incurred on November 20, 1903. Neither is there anything in the record to indicate that the writ was ever issued. The language of the order, in effect, only authorizes its issue after the bond is filed. It was filed December 4, 1903, after which the order might have been issued. The bond recites that the injunction has been granted, and the sureites have a right to rely upon its condition that it shall be operative only after the bond is filed.

4. The case cited by counsel for plaintiff to the effect that the bond will have a retroactive effect, viz., Meyers v. Block, 120 U. S. 206 (7 Sup. Ct. 525: 30 L. Ed. 642), is not in point, that case being decided upon the fact that the undertaking was given with knowledge that the writ had been served and in terms was retroactive. However, the record fails to show that the order was issued or served. It is stipulated that the sheriff made no return of service on it, and it does not appear that it was ever in his hands. Therefore, what took place on November 20, 1903, when Capt. Hagstrom was loading the wood on the bank- of the river, when he says two men came there, one representing himself to be a deputy sheriff and the other the plaintiff in the suit, Dileo, and delivered to him a copy of the injunction order in the suit, does not establish that the order had been issued nor that such order was served. Therefore the plaintiff failed to prove a cause sufficient to be submitted to a jury.

Decided February 7, 1911. [113 Pac. 57.]

The judgment is reversed, and the cause remanded for a new trial. Reversed.

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Rehearing

On Petition for Rehearing.

Opinion by

Mr. Chief Justice Eakin.

5. It is contended by plaintiff that this court has erred in recognizing the transcript of the reporter’s notes of the trial as sufficient to enable it to review the action of the lower court in denying the motion for a nonsuit, for the reasons, first, that it is not a bill of exceptions; and, second, that it does not contain exhibit No. 6.

Counsel for plaintiff, in the brief, contends that a transcript of the reporter’s notes of the trial, even when signed by the judge, is not a bill of exceptions, within the statute and the decision of this court in Nosler v. Coos Bay Nav. Co., 40 Or. 305 (63 Pac. 1050: 64 Pac. 855), and urges that'the case of Bigelow v. Columbia Gold Min. Co., 54 Or. 452 (103 Pac. 56, 1007), which holds that the transcript of the whole evidence given prior to a motion for nonsuit is a proper bill of exceptions to present the alleged error of the court in denying the motion, in effect overrules Eaton v. O. R. & N. Co., 22 Or. 497 (30 Pac. 311). But counsel misconceives the effect of that case. The principle announced in Bigelow v. Columbia Gold Min. Co., 54 Or. 452 (103 Pac. 56, 1007), was decided in Johnston v. O. S. L. Ry. Co., 23 Or. 94 (31 Pac. 283), in which Eaton v. O. R. & N. Co. is distinguished, and this case has been followed ever since. The plaintiff’s brief expressly stated that the bill of exceptions is a transcript of the reporter’s notes, and it does not question its sufficiency or identification.

6. Exhibit No. 6 is volume 2 of Hill’s Annotated Codes and Statutes of Washington, which was offered in evidence for the purpose of introducing 10 pages thereof. We do not deem its absence from the record sufficient ground to preclude a consideration of the motion for nonsuit, as it is a duplicate of an authoritative book of which there are great numbers, there being one in the State library; and it would be sacrifice of substance to mere form to hold that the court would refuse to consider the statute, when we have it at hand, simply because a different copy was introduced at the trial.

We also adhere to our holding that there is no evidence in the record that the restraining order was ever issued or served. Although the motion for nonsuit is not very specific, it questions the validity of the injunction order.

The motion is denied.

Reversed: Rehearing Denied.