*1 GUNSCH, Respondent, Plaintiff and GUNSCH, Gunsch, David Dan Appellants. Defendants and
No. 7397.
Supreme Dakota. Court of North
Dec. April
Rehearing Denied
74x *3 Bismarck, Murray, appellants. K. for J. Floyd Sperry, B. Valley, Golden for respondents.
GRIMSON, Judge. This is one of a series related actions arising out of the unfortunate troubles of family. plaintiff, the David Gunsch Gunsch, commenced action on April injunction, for an for an accounting quiet and to title. She al- leges that she is the owner of the South (S%) Quarter Half and the Northeast (NEj4) (13), of Section Thirteen (5½) the South Half of the Southeast Quarter (SE^4) (3½) South Half Quarter the Southwest (SW^Q o-f Sec- (12), Township Twelve all in tion One Forty-three North, (143, Hundred Range Eighty-nine (89) -West 5th. P.M. County, Dakota, subject North Mercer to a price; purchase due on the balance husband, 'bought land had been her said Gunsch, Tony father, from his David Gunsch; that she obtained divorce from Tony Gunsch in action the and transferred unto her decreed said real subject rights estate said David deed; .under contract for paid $4,000; has been on said contract there pay has offered to balance $12,000and interest which was refused ,by Gunsch; said David that the defendants way improvements authority right, re- the value have, without crops premises breaking seeding the land from for moved the land; pastured Tony The evidence shows off kept her tenants several had farmed land violence; threats force and years possession thereof. On was in buildings there- portion removed a February 19, 1951, Tony bought trespasses repeated from and continued contract, father, David numer- thereon; instituted have $16,000. On March purpose proceedings for the legal ous *4 wife, Gunsch, Tony’s a commenced Leona plaintiff and that annoying the vexing and against On date a action him. that' divorce keep to continue unless restrained will temporary issued restrain- was from her tenant and Tony disposing any of his ing from in- deprive property and her property. the divorce ac- On June therefrom; ir- that she suffer come will on a tion was heard and June reparable from their actions and damages judgment granting was Leona Gunsch filed adequate remedy at that has law. she Tony a and in divi- divorce from Gunsch a injunction pend- temporary for a She asks was sion of the she awarded permanent injunction a ing action and Tony’s interest in the section of land restraining the defendants from thereafter father, 'by subject him his bought from to her interfering agents or cash, purchase and some that contract of enjoyment and in the these furniture. The evi- cattle and household premises. She further asks for an account- defendants, dence further shows and that ing crops for the de- put granted forth the after the divorce was required to set forth their fendants Gunsch and Dan Gunsch claim that John and claims to the land that same be de- Tony bought the land from on March That has clared null and void. been done Tony denied that and made ar- other actions. rangements premises for the in 1951. complaint Upon filing of the and the plaintiff’s supporting affidavits of tenant 1951,Tony spring In the leased or attorney, an to and her order show cause Neuberger, acres one Carl was to and to why temporary restraining a should crop. get one-third of the Then he made not be was issued. court con- seeding arrangements for the of the re- cluded, satisfactorily appears “That it to the fields and secured as- mainder of good cause for an in- exists Neuberger brothers, sistance of and action, junction, pending said and from Gunsch, and Dan Gunsch to seed the John complaint affidavits, and said said and the crop. Tony was receive to one-third herein, the defendants shall records be so crop Neuberger seeded and harvested. His enjoined.” hearing restrained and On the brothers were Tony’s to use combine on the order show cause crop they put in for him harvesting and continued. of that combine for their have use own Tony crop in return for the assistance joint filed alleg- a answer year. raising crop Tony was to ownership ing the land in the crop. crop all of the Out of that receive defendants, Gunsch, Gunsch and Dan John $4,100 paid Gunsch as to David a first subject to the contract for deed with the Tony payment the land contract. on did Gunsch; defendant, alleging they David anything. not receive purchased and cattle land some Tony machinery spring Tony from on about In the continued his day April prior attempt exercise control and entered 1st into pending Neuberger to determine the action is conflict- a lease with Carl the farm- counterclaiming thereto and ing ing claims of most of the farm land the section. however, decree, interfered David, John, Dan and after divorce have claimed to carrying bought lease. an oral with the out of that under contract Gunsch, defendants, property involved, Tony Dan and the other from John spring early Gunsch on March this entered land 1951. On that says: and farmed it in acquired voluminous, As soon as Leona Gunsch “The often evidence de- Tony’s conflicting, contradictory in the land divorce and even con- Kees to engaged fusing. cree in she one When evidence is con- crop- spell look after section of land and sidered as whole it does not out however, Gunsch, agreement it for ping par- her. clear-cut between th away stay negotiations place interfered told Kees to ties. If took language. appears threatening land rather whatever talks there were plaintiffs Tony between the January leased the father, pri- their David one Fred He made land to Flemmer. keep mary purpose attempt was to *5 prevented preparations farm it to but was procuring Leona an in- Gunsch by and Dan He testified Gunsch. John Tony’s property; terest in but the ne- that, get him I they “If didn’t want to told were, gotiations, they whatever never stay Again Dan had better out.” hurt I agreement to an oral be- amounted upon early. entered the and land John * ** parties. plain- tween the The cyclone they “They like a and came out possession prop- tiffs obtained tractors, give came with five didn’t out erty knowledge the without and consent anyone Dan and chance.” Counsel for a Tony Gunsch; possession of retained him Neuberger warning wrote letters John in 1952 and 1953 coercion and get keep “you the land or liable to to are off possession Their threats. of the land hurt.” * * * are, illegal they and trespassers upon prop- been have the trespasses by to the claimed In addition erty.” upon property in the real the defendants they against instituted actions two The court found: plaintiff involving her of and equitable is “Leona the Gunsch own- the cattle that to right to had been awarded question] land in er of the section [the Furthermore, divorce decree. her the Tony as successor of brought and Dan Gunsch Gunsch John pursuant judgment to the Gunsch determine adverse action to claims to this her in the ac- decree divorce land, brought and David Gunsch an action Tony against Gunsch and tion foreclose to contract. Tony she interest of received actions, together these in- All with the the contract for deed Gunsch with case, by stipulation, were stant tried to- father, involving David gether July objection 1953. No and she is im- the ‘section’ entitled to form made to actions. possession thereof”. mediate judgments Different were entered deter- principal mining issue each raised thereupon This determined All these case. actions were decided conflicting claims to this real estate plaintiff favorably to the in this action and plaintiff, favor of the Leona Gunsch. Her appealed have to court. therefore, ownership, is established the claims Gunsch and Dan Gunsch Gunsch, N.D., case of Gunsch v. It found invalid. is further held therein determine N.W.2d adverse they trespassers on that the land in claims, very thoroughly this court discussed 1951, 1952 and 1953. bearing ownership as the evidence on the premises. Reference In the action David Gunsch to fore- John, made hereby
is thereto. Dan and close his contract this court found that ,744 the, case, Tony’s such successor of in- circumstances Leona Gunsch as n laches, right pay as or where the interference contract had the terest in that n plaintiff’s right" with the trivial.” due thereon.
the balance Injunctions, p. Gunsch, 'iN.D., Kerr' on 32. N.W.2d -—. case In the instant there are has, therefore, Leona Qearly such had circumstances. of the real be the owner been found.to injunction in the to order final It followed estate since June instant case. repeated tres defendants were inter passers land; upon the Contempt en plaintiff’s right to the fered May 1953, day 28th On the joyment of said land. the fruits her setting Gunsch filed affidavit forth finding. fully warrants evidence preliminary restraining issuance or- threat continued also shows the evidence der in this matter its due service trespass upon such of the defendants to defendant. She then claims deprive property and defendants had violated year production for the fruits of its proceeded upon order and pre protected had been operations thereon, and also up time of liminary restraining steps prevent her had taken entry in this With judgment case. premises. tenant from operating said She preliminary re entry judgment the of that kept alleges further merged straining ceased and was *6 gate a lock the buildings on the on the to Marzolf, judgment. final Martinson v. premises; purpose sign erected a for the dan 937. The N.W. keeping plaintiff of off of the land. defendants, trespass ger of tíre John Gunsch, and the threatened Gunsch and Dan day July 18th of an order crops clearly plaintiff of loss to the the 1953 thereupon to show cause was issued very would at least be doubt It continued. heard, Wigen. Judge it be Before could grain find if out how much ful she could however, disqualified he Judge was and remedy became it. A what of was or raised place. designated in his Amundson would damages for be as insufficient alleging filed another affidavit de- Gunsch extremely difficult to ascertain the would be upon prem- fendants had further entered adequate would afford relief. amount that thereof, farming prayed ises and for she 32-0504, In such Section NDRC cases directing for an to cause order show Dan injunction. a final authorizes they why to show John punished contempt. should not be jurisdiction prevent to peaceable disturbance threatened Upon the affidavits of Leona in enjoyment of real summons, complaint use and and all the files in the equity. Hasselbring court v. case, herent in a Judge granted Amundson order an Koepke, 263 Mich. day July to show cause the 22nd equity protect A court will A.L.R. 1170. why at o’clock A.M. 10:00 possession rightful claimant’s or punished contempt be should not trespasser. against a Zim to farming court in in the land McCurdy, merman spring of 1953. N.W. 125. This order cause was show served legal the defendants. Dan the establishment Gunsch and “After violation, denying Gunsch filed a return to said the fact of its
right and of properly served; that general is in it- had admit- entitled as farming perpetual injunction ting of the land under the course to Tony purchase wrong, claiming recurrence claimed prevent special they that had something in counsel advised there be them unless being employees, said defendants or property; equitable were owners of said hereby to remain off ordered to throw be used could not inter- premises, to refrain from off; possession and they in them were plaintiff’s operations fering with the pur- the land under contract thereon, said ac- trial pending the chase; was void the restraining tion, effect, or final order of the they abso- and of no and that land; herein.” stay lutely ¡ of said safe to attempted take plaintiff had never that the property, description Then follows a possession; told them that Fred Flemmer $1,000 undertaking which an order for him of his but that lease told order was restraining This furnished. Tony; they, bought the land from April 6, duly defendants on served on the faith, attorney good the advice of took possession, farming continued land. 32-0602, 1943, provides Section NDRC injunction may granted: an be
Upon the the cases it was joint trial of stipulated: appear by “When it shall the com- plaint is entitled parties “That between demanded, relief, relief contempt proceedings (3) three now part thereof, consists court, pending that all the before some commission or continuance of received in the trial of the evidence six act, the commission or continuance of (6) trying which we are now cases produce litigation during will jointly, court in be considered plaintiff”. injury to the actions;” contempt these
determining
1943, provides,
Section
NDRC
stipulated:
and it
further
injunction may
that an
be
at the
“That all
op-
either
affidavits of
appears
commencement of
action if it
parties
posing
admitted
evidence
satisfactorily
“by
the affidavit
*7
and that the identification of them
plaintiff,
any
or
person,
.of
other
that
hereby waived,
are
exhibits
that the re-
grounds
sufficient
exist therefor.”
spective exhibits are
the files
of the
In
County,
Brace v. Steele
276,
77 N.D.
bearing
respective
their
cases
titles.”
282,
672,
42 N.W .2d
this court holds’:
Upon this
of the
submission
con
injunctive
“In
an action
relief a
tempt
passed upon
cases the court
the mat
temporary injunction may
granted
Clearly,
any
if
ter.
there
irregularity
plaintiff
to restrain the defend-
service
the order to show cause
ant from the commission or continu-
it was waived.
ance
against
of some act
which the in-
junctive
sought
relief is
pending the
restraining
by Judge
final determination of the
on
case
Wigen April
on
19S3reads as follows:
merits,
protect
when it is necessary to
rights
plaintiff
of the
during the
“It is further ordered that the de-
litigation.”
also
Walter,
See
Burton
fendants,
v.
Gunsch,
Dan
Gunsch,
John
257;
13 N.D.
hereby,
and David Gunsch
Forman
are
until
Healey,
v.
11
court,
866;
N.D.
enjoined
further order of
93
N.W.
Hunnewell,
McClure v.
restrained
entering
from
going
or
N.D.
48;
upon
Radlce,
N.W.
Gillies
premises,
any
thereof,
v.
part
said
78 N.D.
974, 54
N.W.2d 155.
complaint,
are described in the
-
thereon,
from trespassing
or in
interfering
way
operation
purpose
with the
The sole
of a temporary
plaintiff,
tenant,
injunction
thereof
her
is to maintain the
cause
status
Flemmer,
Fred
or by any
agents
her
quo
until a trial on the merits. Brace v.
276, 42
County, 77
N.W.2d
“It
is not a
Steele
N.D.
defense that one who
2, p. 406,
C.J.S., Injunctions,
upon
violated an
See
did so
§
Am.Jur.,
12, p.
Injunctions,
Chapel
advice of
See
counsel.”
v.
§
Hull,
60 Mich.
abuse residing upon not and as were complaint restraining order Gunsch, has held in Gunsch v. this court submitted. affidavits supra, had no thereof. trespassers. They They were not Defendants, primary Dan good and “their acting in faith plead keep and their counsel now advice attempt was to purpose as defense to violation protecting of counsel her Generally is restraining clearly order. not property.” They Tony’s violated contempt pro good defense in the court. considered order of ceedings. Simpson, 78 case of State acted “The fact a contemner this court held: 360, 49 N.W.2d generally advice of counsel under *8 injunctional equity in “‘An an for proceeding to con- no defense lite, by case, pendente issued a court ; considered tempt that fact will be but powers equity full and having com- offense, pun- the or the mitigation of in subject jurisdiction of the plete mat- therefor, where the least at ishment ter, obeyed be while it must remains has the advice in acted on contemner force, irregularly or er- however in faith, injustice will or an where good ” roneously may have issued.’ it See However, facts and cir- if the result. Hodous, 392, Hodous 76 N.D. v. also show the excuse is cumstances 1051; 12 A.L.R.2d N.W.2d 36 . pretense and that the action merely a Miller, Glein v. N.W. deliberate, willful, contuma- and miti- cious, not be will considered in it held, nor, may has an gation; 1943, provides 27-1003, NDRC Section the of advice of attorney urge excuse may punish every record court of as punishment.” mitigation of in counsel any person contempt guilty of civil Contempt, 38, p. 52. C.J.S., § by right remedy or which a of misconduct may defeated, a civil be party to action Brown, 335 Mich. the Brown (Subd. prejudiced or impaired 3) held: it is N.W.2d ' this shows order, in case judg- The evidence any disobedience to lawful in David legal title the to process court. ment or of the him subj contract ect between that the de The evidence shows interest was decreed Tony; Tony’s and fendants, and Dan The plaintiff. the court to the defend John of misconduct guilty in this case were equitable owner John, ants Dan and claim in ac plaintiff this rights the of the Tony. which purchase from ship alleged under an They disobeyed prejudiced. the tion prem crop raised on Two-thirds of the find The order order of court. lawful applied on contract to ises were be contempt of of guilty ing defendants equitable protect title either of David proper. court was plaintiff and whoever was Dan or the rightful there finally found to be the owner Receivership. applied If not David could foreclose of. so deprive parties to this action the other July was made a motion their found that the interest. court appointment of a defendants for n equitable title plaintiff was owner question. for the real estate receiver divorce under decree of and that the ap- upon the affidavit and This was based good were not defendants faith but were reciting the his- plication of Leona Gunsch trespassers legal and had to. February tory the real since .estate property. In this all parties case of the ownership under the di- her thereof lawsuit crops.’ this claim an interest in the decree, trespassing farming vorce appointment These bring facts within the land in 1952 defendants with- provisions 32-1001, of Section supra. any accounting, danger her out los- crop; only way the 1953 ing The case of Olson v. Union Central Life protecting rights her Co., 223, 225’, Ins. crops property appoint was to a re- appointment of involved the a receiver for to take the same charge pending ceiver crops certain disposition litigation final over the from disposing same. defend- question. land The defendants filed ant had foreclosed on certain real estate in objection and written resistance to said redemption 1924 and no had been made petition reciting claims plaintiff. began Plaintiff the action to Tony. under alleged purchase set aside and vacate the sale. He remained in 1926 and 1927 and farmed five court evidence premises. The action came for trial and appointed pos- giving cases him a receiver judgment was entered for the authority of the land session to take 1927. The defendants then applied the land and the care and the June appointment for the receipts receiver for therefrom. crops had seeded. The Section Subdivision NDRC says: 1943, provides may ap- that a receiver pointed by the in which an action is “The main case been tried and *9 parties jointly pending between interested disposed of the trial court. The property application involved on the in the judgment entered that court inwas “any party or whose in respondent, favor of the quieting title property proceeds or or the fund thereof in it and the awarding possession of (cid:127) probable, is shown is and when it question in to it. The danger lost, or fund in property being is crop involved receivership pro removed, injured”. materially' or ceeding, respect to which appeal order which this was argue 'appoint- taken entered, crop necessáry prop- is was was about ment of a receiver not or to mature premises. on the At appli in a case where the claimant time the er of title made, possession good in faith. cation -for the was is in 748
n , perfected. equity step At that appeal preserve been will in had' and ju property unquestionably by injunction ap-
time or pointment appoint a authority 1, of a risdiction1and receiver.” Vol. Clark it, Receivers, neces Addition, it were on receiver to conserve if Second' Sec. 187;p.245. sary that this done.” be ‘ appointed 627, over In Ingwalson Aney, be “A receiver will v. 54 210 N.D. 498, 500, parties contesting are N.W. it crops where is said: land, be claiming each title of any given “Whether in case a situa- is inter- each possession, and where justifies tion exists requires or harvesting the other fering with appointment a is receiver one- him,' threatening crops grown legal addressed to the sound discretion Tardy’s 1 Smith forcible resistance.”. of the district its order will 203, Receivers, p. 505. Section on appeal not be disturbed on unless clear- ly wrong. 2 Tardy^s Smith on Receiv- recognized generally It been has ers, p. 2d ed. 1954”. See also Dale v. well as other authorities this court as Duffy, 176 N.W. ancillary give will jurisdiction equity Receivers, 47, p. Sec. Am.Jur. appointment by the aid to an action in court when the facts show receiver argues Defendant’s counsel that when the preserve the status remedy necessary to district court had made its fixing proper in issue until quo undertaking appeal amount of on disposition has thereof been determined in stay parts money as to judgment his litigation irreparable providing damage jurisdiction ceased and that appeal when an .may existing result if the status of the taken power duty had no more or preserved. property is not Sec. receivership. as to the He claims that no provides that Subdivision NDRC application was pending for reappoint- may appointed cases, in all (cid:127)a receiver ment of a receiver at the time the “Modified ap heretofore have “where receivers Order Fixing Conditions and Amount of usages equity.” pointed'by the court of Undertaking Appeal, on Staying Execution also, Harnage, v. See Martin Okl. and Proceedings to Enforce Judgment L.R.A.,N.S., 228; Dale P. v. Pending Appeal” dated March 97; 176 N.W. Duffy, 44 N.D. Olson v. issued. There stay was no of the receiver- Co., Life Ins. Central Union ship granted in said order. Instead it was provided possession of the real estate should remain in the receiver crops planted by are “Where a tres- appointed possession to take thereof and of wrongfully passer who assumes to hold crops, the 1953 he should continue threatens to harvest possession and under said order and “take crops for own bene- market crops upon of the 1954 said real fit, appointment . a receiver is estate, crops and all raised thereon there- appropriate proceeding.” authorized after, until further order of the court.” Morrison, Cal.App. Barnes purpose This was done for the of protecting 986, 989. 282 P. saving crops of 1954 for the same lien, “If has reason that the charge appointed receiver was place. prop- interest in the the first litigation other defendant’s pend- was still erty, ground appeal. ing and there reasonable that, apprehend pending litigation, In Olson v. Union Life Central Insurance subject lien, property, of such *10 supra 899, Co. N.D. 228 225], N.W. [58 charge or other will be dis- court holds: fraudulently or posed way in such a deprive the'appeal complaining party perfected “When as to recovery, thereby fruits of then court trial court was a divested of the
749 * (cid:127)* Radke, 78 N.D. Gillies upon v. parties further hear the power to ' 985, Dono 54 162. See also N.W.2d in the determina- question involved Allert, 289, 297, 91 van v. N.W. retained but it the main action tion of 775; Peterson, 30 58 L.R.A. Sand v. preserve' protect and jurisdiction to 271; C.J.S., N.W. subject of' property which was Injunctions, p. An order to 420. § 7588 C.L. litigation. See section including restraining show cause a 1913; Roland, Iowa Mitchell v. may be if it is “shown in the mov issued 606; Ritzinger, v. Brinkman papers ing that there exists such an exi Arbuckle, 19 358; v. Beard 82 Ind. gency requires- as the imme occasion 145; Ins. Co. Penn Mut. W.Va. rights diate issuance an order so that 314; generally N.J.Eq. Semple, 38 32-0607, parties may preserved.” 39; Am.St.Rep. page the note in 72 purpose The re of such NDRC 110; Receivers, High on § C.J. straining keep order is to matters in status seq.” et quo until a is made whether determination fully temporary injunction in a warranted should issue. court was in this action. appointment of a receiver temporary order, “A court is judgment of the district species injunction, in effect a while affirmed. respect is in some distinguished to be interlocutory It is an
therefrom. or- writ upon der or issued the court JOHNSON, MORRIS, J., C. application injunction, an for an SATHRE, JJ., concur. BURKE as a is intended restraint on the de- propriety grant- fendant until the Rehearing. Petition ing preliminary injunction a can be determined, going thus further GRIMSON, Judge. operation preserve its than to sta- quo tus until that determination. petition filed a for re made, When that determination is claiming trial hearing court the-temporary whole force restrain- authority preliminary tor issue had no order, ing ceases its own limita- injunction because the defendants were -in p. tions.” 28 Sec. Am.Jur. land involved under a C.J.S., Injunctions, 8, p. See also 43 § ownership; injunction claim an could not be substituted for an action at law for of real In the case at'bar statements were plaintiff instead suffering an complaint and made in the affidavits that irreparable injury received benefit from was the owner of the land in the defendants’ the land in 1953. volved; defendants were tres land; passing said had ille quiet This is an action to title crops prem the 1952 gally off the injunction removed and for an portion, buildings; ises and a accounting. A temporary restraining plaintiff’s keeping force was issued on the filing of the com tenant,
plaint. ready injunction go who was on and farm temporary A may be is land; sued court in its discretion off at the plaintiff irreparable commencement of an action cause the plead if this could ings adequate and supporting injury which she had no affidavits the rem deems grounds allegations sufficient These edy exist at would seem law. therefor. exigency justifying Sec. provi NDRC 1943. raise an the district “This sion vests trial court the in the exercise of its discretion to is discretion April 4, 1953, to determine in first its order on instance whether sue de temporary May cause on shall be fendants show *11 1953, plaintiff temporary injunction reply should not
why filed a to defendant’s propriety counterclaim granted making general determine the he and to denial specific ownership thereof, restraining the denial of defendants defendant’s plaintiff’s question. . May the land in interfering with On the de- meantime from quo possession preserve application fendants filed “return to so as to the status temporary injunction,” praying that be hearing. until plaintiff granted temporary denied and no necessary is that the com- “It not parties relief whatsoever. Both fur- filed established, plainant’s rights clearly support ther affidavits in their claims. complainant find is or that the court no, record, however, There any is hear- prevail hearing. entitled the final to on ing May 18, 1953, being any had on or of appears It is sufficient if it that there order having been in the matter entered a real and substantial be- is certainly appeal any was taken from parties, proper to be inves- tween action of the on that order show to tigated equity, in a court of in or- cause. prevent injury der to to irremedial complainant, before his claims can be Radke, In the case of Gillies v. pro- investigated, necessary to it is 54 N.W.2d the situation was any change hibit in the conditions and somewhat similar to the one at bar ex- relations and of the cept that the claims of the parties during litigation.” Gold- stronger. plaintiff The obtained a deed to field Consolidated Mines Co. v. Gold- premises. Defendants leas- 220, C.C., field Miners’ Union No. ing years past land for some and were F. lawfully possession. brought injunction suit for an restrain injunction When an granted without the defendants from interfering with the may notice the defendant at time be- plaintiff’s possession under his alleg- deed apply trial fore to the court to vacate or ing the trespassers. defendants were modify the same. NDRC Sec. forthwith preliminary in- junction .restraining the defendants from ' bar, interfering plaintiff’s defendants, with at use case on and occu- 6, 1953, pancy premises April of the were served with the re- and directed the de- fendants straining why to show cause accompanying papers. such an order April 16, 1953, should not be judg- On continued until defendants an- final plaintiffs ownership posses- on ment. went claiming swered the merits into premises and asked that the sion. The title defendants claimed to have a quieted in them thereto be and that “the under complaint be dismissed and that option buy lease nothing.” No motion take was made that claimed to have A hearing exercised. on temporary restraining order be dis- the order to show cause was had April solved. On an affidavit of which the temporary court continued the prejudice against was filed Judge Wigen. injunction. appeal No was taken from that May Judge Amundson designat- On says: The court order. supreme ed court to hear the case. May defendants, may be as the On Dan and “It defendants con- Gunsch, filed their return to tend that the court improvidently the or- trial John der making temporary injunction show cause reference to issued the incorporating preserving answer therein. No instead the status request quo placing dissolution of the it disturbed it plain- made.for.a - temporary restraining May 6, order. tiffs How- of the land. ever, Judge Amundson set a hearing new original both the issuance subsequent the order to show and its continua- cause and. restrain- n May. hearing May May 1953. On at the close of ing order .tion
751 Judge Wigen On an or- by court that of. 1 issued were orders issued 10 June (cid:127) why der to subject the on defend- cause jurisdiction of both show had June appeal punished contempt was ants parties. No should not be of the for matter and continuing the failing obey court for from the taken order been done injunction, might as have On an affida- order. filed June 28- provisions prejudice of Section in against Judge Wigen under the vit *” ** 2702, contempt Judge NDRC on matter and June designated place. Amundson was case did not instant The defendants July 21, 1953, On Judge Amundson issued They could May until 18th. have to wait why an order July to show cause on to dissolve the a motion at once made have punished defendants con- should not be for They order. did preliminary restraining tempt. July On “re- filed a defendants Injunctions, C.J.S., not do that. § turn to contempt” in which is “A formal motion p. 986, it said: they admit the land but claim necessary, unless ordinarily is to dissolve so did on advice of counsel prayer for disso- answer contains injunctional effect that was order void. Fertilizing Mfg. & lution.” In Manhatten stipulated Thereafter it was con- N.J.Eq. Keuren, 23 v. Van Co. tempt proceedings be submitted the evi- on holds that: court dence joint six re- received trial of pending. Upon lated then cases the evi- existing injunction can be re- “The dence so received issued trial court only upon moved notice and motion final injunction prayed for, appointed notice mo- Without such dissolve. a receiver guilty and found the defendants tion I shall not assume to consider the contempt. propriety of its continuance.” procedure contempt pro- for the instant made In the case the defendants ceedings was in accordance the stat- with restraining or- no motion to dissolve the may punish ute. The court as for civil appeal an der or to force a decision so contempt any person guilty of violation propriety be taken on the thereof. could an order which the pending proceedings may impaired. 27-1003, be if there NDRC It is clear that procedure inwas accordance with sub- propriety of trial question about 27-1007, division Sec. issuing temporary NDRC restraining or the issuance of an order to cause. by the failure show was waived der that quashed, to move that be it Sec. defendants Instead bringing contempt matter NDRC the failure to hearing defendants, claiming on for hearing a dissolution insist on counsel, proceeded the advice of con- May finally by the submis for set temptuously things they do had for the whole matter trial on the sion enjoined doing. merits. stated, already As the restraining order rehearing petition In the for a the de- not have void. We even also held that further contend fendants irregular if its issue were it to be contempt pro- jurisdiction had no obeyed until was vacated the court. procedure irregular because of ceedings invalidity temporary in- Miller, In Glein v. junction. said: we application May made improvidently “To hold that why to show cause impunity violated an order issued can be punished contempt litigants not should to invite resort to the use court, of the re- setting forth the violation sufficient to force maintain their straining Judge Wigen rights issued -to as understand them be. support adopted policy and filed there- should not be April affidavits Such a *13 so, up- prides finally appli- system grants itself and the court of law remedy every wrong.” injunction prevails cation the and a viola- having tion contempt thereof would constitute Markuson, Hodous, court.” In State v. See also Hodous v. injunc- “An this court held: 73 N.W. N.W.2d A.L.R.2d 1051. case, equity pendente in an tional order We find the proceeding initiating lite, having equity full issued a court contempt regular preliminary and the re- powers complete jurisdiction of the straining defendants were subject-matter, obeyed re while it must charged violating valid. adhere We force, irregularly er mains however our original decision. may roneously have issued.” petition rehearing for a is denied. 360, 366, Simpson, 78 N.D. State v. giv we “The defendant is 2d said: BURKE, J., JOHNSON, C. right to move for the vacation of en the time, MORRIS, injunction at until he does but SATHRE concur.