6 Indian Terr. 485 | Ct. App. Ind. Terr. | 1906
Lead Opinion
This was a suit in equity, in which •the appellant (plaintiff) filed her complaint, and asked for a -temporary restraining order against the appellee (defendant). The appellant has filed five assignments of error, as follows: “(1) Because the court erred in refusing to grant •the .injunction prayed for by the plaintiff against the defendant. (2) The court committed an error in dismissing plaintiff’s bill and rendering judgment against plaintiff on the ground that plaintiff failed to show any equity in her complaint. (3) The court committed an error in dismissing plaintiff’s bill and rendering judgment against her on the grounds that there was no equity in the complaint. (4) The court committed an error in denying to plaintiff the injunction prayed for and •dismissing her complaint on the record that the testimony
Section 752 of Mansfield’s Digest is as follows: “They shall have power to regulate the building of houses; to make regulations for the purpose of guarding against accidents by fire, and to prohibit the erection of any building, or any addition to any building, more than ten feet high, unless the outer walls thereof be made of brick or mortar, or of iron, or stone and mortar; and to provide for the removal of any building
The plaintiff alleges that she proposed to repair said building, hence ordinance No. 134 is the only one applicable to the plaintiff’s case, and that is not applicable, unless it is a wooden building damaged to the extent of 25 per cent. Upon exactly what -ground the court decided this case is not disclosed in the judgment. If the court dismissed the complaint because no equitable relief was stated in the complaint, we cannot agree with the judgment or decree of the court. If the court 'arrived at its conclusion from the evidence submitted in the affidavits, then it must have found that the building was a' wooden building, and damaged more than
The defendant then introduces: First, the affidavit of D. C. Boswell, who states that he is a carpenter and builder and contractor for building, “and have been engaged in the
Appellant', in her argument, insists that ordinances Nos. 133 and 134 are void, No. 133 as being inconsistent with section 752 of Mansfield's Digest, and No. 134 because it conflicts with the general law authorizing the incorporation of municipalities in the Indian Territory. But this was not an issue in the court below. It is not alleged in plaintiff's complaint that these ordinances are void, and hence that question is not before the court. Elliott on Appellate Procedure, § 481, says: “It is required by the general doctrine that the court of last resort should not be required to decide a question that has not been passed upon by the trial court, since any other holding would in effect make the Appellate Court one of original jurisdiction. The true theory is that there must be a decision by a court of original jurisdiction to be reviewed by the appellate tribunal, for unless this be so the Appellate Court becomes a trial court.” And in sections 489 and 490: “The cardinal principle of appellate procedure which requires that questions of which a review is sought shall first be appropriately brought before the trial court for decision, makes it indispensably necessary that positions should not be shifted on appeal, for, if parties were allowed to change positions, the appellate tribunal would often be compelled to decide questions as purely original ones, and this, certainly, is not the purpose for which they were created. It is, therefore, with reason held that parties must stand by the positions assumed in the trial court and upon which they asked and obtained rulings. The same rulings are to be reviewed and not different ones.” Section 489. “The strong current of authority carries the general principle stated to its
Reversed and remanded.
Dissenting Opinion
(dissenting). In. this case the questions involved reduce themselves to one: Shall this court reverse the court below refusing an injunction upon a question of fact where there is contradictory evidence? The ordinance of the city of Vinita concerning repairs on buildings within the fire limits provides that where the repairs of a wooden building do not exceed 25 per cent, of its value, such repairs may be made, and the court below in refusing the injunction sought by appellant to restrain the officials of said city ■ from interfering in making repairs found there were no equities in favor of appellant and refused the injunction prayed. The testimony before the lower court was, on the one part, to the effect that the repairs necessary in consequence of damage by fire and water to the building in question exceeded25 per cent, of its value, and on the other part, that such damage was less than 25 per cent. It is true that all the evidence in the case before the trial court was in the shape of affidavits, and
In the case at bar, I do not agree with my Brethren in the reversal of this case. The court below had ample opportunity and was clothed with full authority to pass upon the facts, and its findings of the facts is conclusive upon this court. For this court to say that certain testimony shall be received and given credence, and for the court below not to have received it and given it credence was error, and that other testimony shall be refused and discredited and for the court below not to have refused and discredited it was error, savors of imperialism, and is contrary to precedent, and I, therefore, respectfully dissent from the opinion of the majority in this case, and am of opinion that the judgment of the lower court should be affirmed.