194 Ind. 212 | Ind. | 1924
This is an appeal from an interlocutory order granting a temporary injunction of a mandatory character, and from an order overruling a motion to dissolve such temporary injunction. The order recited a finding that defendant (appellant) should deliver forthwith to one Addison C. Berry who, it stated, was an architect and a responsible and disinterested person, but who was not a party to the action in which such order was made, “all plans, drawings, specifications, explanatory and exemplifying data and memo
The sufficiency of the evidence to sustain this finding and order is challenged. The evidence on which the order was granted consisted of the verified complaint by the school city of Hammond, hereinafter referred to as the plaintiff, an affidavit by appellant Hutton, hereinafter referred to as the defendant, a written contract between plaintiff and defendant, and the oral testimony of four witneses, including a member of the school board of the plaintiff city, the attorney for said board, the architect (Mr. Berry) employed by the board, to whom the order appealed from directed that the plans, drawings, etc., should be delivered, and the defendant.
Under the construction tending most strongly to uphold the order, this evidence proved the following facts: That in 1910 plaintiff employed defendant to furnish all plans and specifications for the erection of an industrial high school building and that certain plans for a main building, with wings, were prepared and accepted, for which a partial payment was made; but, after some years of litigation, it was determined that the cost thereof would exceed the constitutional limit of municipal indebtedness; that in 1915 a contract in writing was entered into by plaintiff and defendant, that recited said
To uphold the ruling of the court in granting an interlocutory mandatory injunction requiring the delivery of the books and papers to Mr. Berry pending suit, plaintiff relies on a supposed rule of law giving the employer of an architect complete ownership and control of the “general design, idea and plan” of a building after the architect shall have prepared the plans and specifications, supervised the construction of the building, and received his agreed compensation. The authorities cited by counsel were all from other jurisdictions than this, and none of them went further than to hold that after said acts had been done, the architect had no such ownership or control of the plans and specifications as would give him the right to prevent his • employer from afterward making use of them in having designs prepared and executed by other architects, without employing him to supervise such further building operations, or would authorize him to enjoin others from copying the plans of a building after they had been made public without being copyrighted, or would enable him to recover compensation from the employer for preparing plans and specifications, without letting the employer have a copy of them. Wright v. Eisle (1903), 83 N. Y. Supp. 887, 86 App. Div. 356; Walsh v. St. Louis Exposition, etc., Assn. (1890), 101 Mo. 534, 14 S. W. 722; Gibbon v. Pease (1905), 1 L. Rep. K. B. (1905) 810, 3 B. R. C. 460; Hill v. Sheffield (1909), 117 N. Y. Supp. 99; 5 C. J. 259.
None of these authorities touch the question whether an architect who contracted in writing to furnish ten
It thus appears that plaintiff sought the possession of some books and papers of which it had never had possession, but which the defendant had made, and of which he had thereafter held and kept possession, of which he claimed to be the sole and absolute owner, and to which plaintiff laid claim under what it insisted was the proper construction of a contract that the parties had entered into five years before,, which stipulated that defendant should furnish to plaintiff ten sets of the plans and specifications and superintend the erection of a building, and under which, said work long ago had been done to plaintiff’s satisfaction.
Leaving the proper construction of the contract for determination when the case shall hereafter be decided on its merits, and merely suggesting that plaintiff’s ownership and right to possession of the books and papers which it demanded were not admitted nor so clear as to.be beyond possible doubt, we come to the question whether the discretionary power of the court to issue an interlocutory mandatory injunction included the right to command the surrender of these books and papers.
It has been held that* when a restraining order to preserve existing conditions had been issued and served, and, in violation and defiance of such order, the defendant had built^ wall, or laid a pipe line, or torn up a railroad track, or otherwise changed the condi
And where the defendant clearly was guilty of an unlawful trespass in doing an act complained of and thereby, in violation of law, had changed a previously existing condition to the detriment of plaintiff, as by entering upon premises which plaintiff was occupying under claim of right, and driving him away by force, or going upon such premises and working at night and on Sunday to erect the walls of a building before an injunction could be obtained, or entering by virtue of the right to lay a pipe line in a right of way acquired by purchase or condemnation, and surreptitiously laying the pipes on another route, a mandatory injunction has issued immediately to compel a restoration of former conditions. Pokegama S. P. Lumber Co. v. Klamath, etc., Co. (1898), 86 Fed. 528; Lynch v. Union Institution for Savings (1893), 158 Mass. 374, 33 N. E. 603; Shedd v. American Maize, etc., Co. (1915), 60 Ind. App. 146, 108 N. E. 610; Daniel v. Ferguson, supra.
And where the defendants admitted by their verified answer that plaintiff was the owner and entitled to possession of certain books and papers that had been in the custody of their decedent but offered an excuse for
But we have not been referred to any authority, nor do we know of any, holding that where the property in controversy never had been in the possession of plaintiff, but defendant had held undisturbed possession .of it for a period of years and claimed to be the absolute owner, he could be required by an interlocutory order to surrender it for the use of plaintiff pending suit, because of the provisions of a contract under which defendant had performed certain services years before, for which plaintiff had paid in full at the time, even if it should be found that, under a proper construction of the contract, title to such property had been conveyed by defendant to plaintiff at the time the contract was executed. The general rule is that mandatory injunctions will not issue to deprive a person of property of which he is in possession under claim of ownership, until after the cause has been fully heard, when it comes up for final decree. And in the absence of extraordinary circumstances, of a character not shown to exist in the case at bar, such an order should not issue. Shafor v. Fry (1905), 164 Ind. 315, 319, 73 N. E. 698; Powhatan Coal & Coke Co. v. Ritz (1906), 60 W. Va. 395, 56 S. E. 257, 9 L. R. A. (N. S.) 1225; People v. Simonson (1862), 10 Mich. 335; Toledo, etc., R. Co. v. Detroit, etc., R. Co. (1886), 61 Mich. 9, 27 N. W. 715; San Antonio Water Co. v. Bodenhamer (1901), 133 Cal. 248, 65 Pac. 471; Kelly v. Morris (1859), 31 Ga. 54; Minneapolis, etc., R. Co. v. Chicago, etc., R. Co. (1902), 116 Iowa 681, 88 N. W. 1082; Neiu Orleans, etc., R. Co. v. Mississippi, etc., R. Co. (1884), 36 La. Ann. 561; Adams v. Ball (1888), (Miss.) 5 So. 109; State, ex rel., v. Graves (1902), 66 Nebr.
Appellant’s exception to the ruling on his demurrer to the complaint presents only the question whether or not any cause of action at all, for any relief what-ever was stated, and would not be well taken if it should be found that the complaint stated facts sufficient to constitute a cause of action in replevin, under §1330 Burns 1914, §1266 R. S. 1881, or for any other relief. A decision of that question is not necessary in disposing of this appeal. Risch v. Burch (1911), 175 Ind. 621, 626, 95 N. E. 123.
The judgment is reversed, with directions to set aside, vacate and dissolve the temporary mandatory injunction, so far as it orders or assumes to order that defendant (appellant) shall surrender to another the possession of any of said property pending suit.