M. C. KRESS, APPELLANT, v. GUS D. COREY, ET AL., RESPONDENTS.
No. 3423
Supreme Court of Nevada
January 12, 1948.
189 P.2d 352
Thruston & McNamee, of Las Vegas, for Gus D. and John D. Corey, Respondents.
Lewis & Hawkins, of Las Vegas, for Arthur C. and Harry C. Pauff, Respondents.
OPINION
By the Court, BADT, J.:
Plaintiff in the court below, M. C. Kress, has appealed to this court from the order and judgment of the lower court dismissing his complaint for a declaratory judgment, assigning error, among other things, in the sustaining of the general and special demurrers of the defendants Gus D. Corey and John D. Corey and of the defendants Arthur C. Pauff and Harry C. Pauff. Other errors are assigned and will be discussed later. The case is the first one to reach this court in which there has been brought into question the right of a plaintiff to seek relief under the uniform declaratory judgment
Plaintiff‘s original complaint, denominated “complaint for a declaratory judgment,” sought a declaration of plaintiff‘s rights and liabilities under an executory written contract set forth as an exhibit wherein the defendants Corey undertook to sell and the plaintiff and one C. B. Turner, not named as a party to the action, undertook to buy a going restaurant and cafe business, the merchandise, personal property and fixtures appertaining thereto and the unexpired term of the lease of the premises held by defendant Gus D. Corey as assignee of the original lessee of the defendants Pauff.
Plaintiff prayed for a declaration determining the validity of this contract and the respective rights of the parties thereto as against the claim of the defendants Pauff that said contract was in breach of a purported covenant in their lease with defendant Gus Corey, prohibiting assignment or underletting without the written
Upon application of plaintiff, the district court issued a preliminary injunction, enjoining the defendants, pendente lite, from interfering with plaintiff‘s peaceful use and occupation of the premises in controversy and the personal property located thereon, and restraining the defendants from negotiating or otherwise hypothecating a certain promissory note in the sum of $17,442.48, payable at the rate of $1,000 per month, which had been executed by plaintiff in part payment of the purchase price under the disputed agreement, the note then being in the possession of defendant bank as security for a2 judgment or decree will terminate the controversy or remove an uncertainty.
Thereafter, plaintiff having by leave of court filed an amended complaint, the defendants Corey and the defendants Pauff separately filed their general and special demurrers thereto. In substance, the demurrer of the defendants Corey was directed to the sufficiency of the complaint to state a cause of action against them for declaratory or equitable relief or otherwise, in view of the asserted absence of a justiciable controversy. The Pauff demurrer averred in addition a misjoinder of parties defendant and a misjoinder of causes of action, in the absence of a showing of privity of contract between plaintiff and said defendants or community of interest in any question of fact or law. The defendants Corey also filed their notice of motion to strike certain portions of the amended complaint and their notice of motion to dissolve the preliminary injunction and to vacate or set aside or modify the order directing deposit in court. The defendants Pauff filed their separate notice of motion to dissolve the preliminary injunction. Defendant First National Bank of Nevada failed to appear or plead and its default was duly entered. Plaintiff filed a notice of motion to continue in full force and effect, pendente lite, the preliminary injunction and the order directing the deposit of moneys with the clerk of the court, which motion the court granted. After hearing, the court made its order and judgment sustaining the demurrers of the defendants Corey and the defendants Pauff to plaintiff‘s amended complaint without leave to amend, dismissing the action, dissolving the temporary injunction, and releasing the deposits paid into court by plaintiff.
That on April 5, 1943, defendants Corey entered into an instrument in writing with plaintiff and with defendant C. B. Turner, to whose interest thereunder plaintiff has since succeeded; that by the terms of this instrument, pleaded in haec verba as plaintiff‘s Exhibit “B,” plaintiff and Turner, as buyers, paid to defendants Corey, as sellers, the sum of $7,000 cash, signed a promissory note in favor of defendants Corey in the sum of $17,442.48, payable at the rate of $1,000 per month with interest at the rate of 5 percent per annum, and agreed to pay, on account of defendants Corey, the sum of $1,067.52 to the First Industrial Loan Company
That by the further terms of the agreement of April 5, 1943, the sellers undertook to have the lease of the demised premises assigned to the buyers, but with the further proviso that in the event that the owners should refuse to consent to such assignment “nevertheless, in such event, it shall not affect, diminish, or nullify this agreement or the terms thereof, but the sellers shall allow the buyers to occupy the said premises under the terms of said lease without further consideration to sellers as if buyers were the assignees thereof, provided buyers pay to said Gus Corey the rentals in amount, time and manner provided for therein, which sellers agree to pay to the person or persons entitled thereto under said lease“; that the sellers undertook further, within sixty days, to deliver to the escrow holder,
The amended complaint alleged performance by plaintiff, as well as his continuous possession and payment of rent; that after the order referred to all payments were deposited with the clerk of the court, and that he was ready, able and willing to continue to perform.
The amended complaint further alleged breach by the defendants Corey, and/or failure of consideration thereunder, in the following particulars: that they did not within the time specified notify the landlords, defendants Pauff, concerning the sales transaction between
That at a time subsequent to serving upon defendants Corey their notice of termination of the lease, to wit, on or about October 4, 1943, defendants Pauff orally offered to enter into a new lease with plaintiff for a five year term commencing October 1, 1943, at a monthly rental of $225 per month; that said offer is still subsisting; that plaintiff, although willing to enter into such new lease with defendants Pauff, cannot safely do so without the determination of the court that his contract with defendants Corey is no longer valid and binding, inasmuch as defendants Corey, in the absence of such judicial determination, will attempt to pursue the remedies of forfeiture and reentry provided in their agreement, and it will become necessary for plaintiff to contest their right so to do in protracted litigation
The amended complaint further alleged that “all questions and controversies that have arisen between the parties to this action * * * can be and should be settled, adjudged and adjudicated in this one action, and that it is essential to promote the ends of justice that this entire controversy should be determined in this one proceeding so that the rights and duties of all parties interested may be finally settled and adjudicated.” The amended complaint also alleged lack of an adequate remedy at law. By reason of the facts alleged, the following relief was prayed: 1. Continuance of the restraining order pendente lite. 2. Continuance pendente lite, of the order for payment into court. 3. For an injunction, pendente lite, to restrain defendants Corey and defendant bank from assigning or otherwise hypothecating the promissory note executed by plaintiff and Turner. 4. That after hearing upon the merits, the temporary injunction be made permanent, and that plaintiff be adjudged to be in lawful and peaceful possession of the premises either “under the terms and conditions of the instruments in writing hereinbefore referred to or under the proposed lease agreement” between plaintiff and defendants Pauff. That the court “determine the liability of said plaintiff to the respective defendants herein, and construe and determine the instruments set forth and described herein, and terminate the uncertainty and controversy giving rise to the proceedings herein,” and determine all equities and liabilities as between plaintiff and defendants and as among the defendants themselves. 5. That in the event that total failure of consideration should be adjudged,
The record on appeal discloses sundry additional motions and proceedings attacking the amended complaint and having to do with the temporary restraining order above referred to. At one state of the proceedings the defendants Corey served and filed a “Notice of Motion to abate or dismiss” the action upon the ground that the dispute controversy or question asserted in the amended complaint had become moot, for the reason that after the filing of said amended complaint the said defendants Corey had, as plaintiffs, commenced an action against Kress and Turner growing out of the matters embraced in the amended complaint, and that such action was still pending; that the matters alleged in the amended complaint herein were in any event of a defensive nature, and could be asserted in defense of the said subsequent action. This motion was thereafter denied by the court, but solely upon the ground that the same had not been noticed in compliance with the requirements of rule X of the Rules of the District Court, and without prejudice. The record discloses that the respective demurrers to the amended complaint were orally argued at length and supported by written briefs. The record does not disclose any formal opinion or decision by the learned district judge in support of the orders complained of other than the clerk‘s minutes from which it appears that the court ordered that the demurrer of the defendants Corey to the amended complaint be sustained without leave to amend “upon the ground that the amended complaint
The notice of appeal recites that the appeal is taken from such order “and the whole thereof, and each and every part thereof” and thereupon again recites in full the order complained of.
As there is no appeal from an order sustaining a demurrer, the purported appeal from the order sustaining the demurrers is hereby dismissed. N.C.L., 1931-1941 Supp., sec. 9385.60.
Counsel‘s opening brief (apparently in complaince with the requirement of
The statement contained in appellant‘s opening brief to all intents and purposes limits the appeal to the judgment of dismissal. However, the court made its order denying plaintiff‘s application for a writ of supersedeas, upon the stipulation of counsel that an order might be made and the court‘s opinion filed later. Such opinion, prepared by Honorable Harry M. Watson, district judge, commissioned by the Governor to sit with the court in this case by reason of the disqualification of Honorable CHARLES LEE HORSEY, associate justice, is hereby adopted by the court in support of the order denying the application for supersedeas.
OPINION ON MOTION FOR SUPERSEDEAS
“As to the Notice of Motion to Dismiss the motion for a writ of supersedeas and the Demurrer to such motion, it not having been pointed out wherein appellant‘s Notice of Motion is in violation of any Supreme Court Rule, or is contrary to precedent, and a motion to strike a motion being unusual procedure to say the least, they are given consideration as is the Response, only as they bear upon whether the appellant‘s motion should or should not be granted.
“It is contended by appellant that the perfecting of
“The action appealed from was for a declaratory judgment, determining the legality and effect of, variously; a lease, or leases, agreement of sale, or proposed lease agreement, and various conduct of various parties, the rights and obligations of the various parties plaintiff and defendant and each of them, and praying consequential or corrective relief.
“By order of the trial court appellant and plaintiff paid to the clerk of the court installments and ground rents as of the due dates alleged in the complaint for declaratory relief. The court order provided these payments should be in lieu of payments to be made the Coreys by agreement of April 5, 1943. The Coreys were likewise restrained from endorsing or assigning the note in question.
“Defendants were enjoined by temporary injunction from doing any act to disturb the peaceful possession of plaintiff appellant and the conduct of his business at the cafe. This was dissolved when the demurrers were sustained without leave to amend.
“The question here to be determined is whether appellant is entitled to writ of supersedeas as prayed. ‘Except where the court is bound to allow a supersedeas or stay as a matter of right (as where supersedeas or stay is the subject of express statutory provisions (3 C. J., Appeal and Error, sec. 1397, page 1274), an order
“The contention of appellant that the preventive temporary injunction dismissed by the trial court had the breath of life breathed into its dead lungs, by the mere formality of providing necessary undertaking for, and perfecting an appeal, does not find support by the authorities reviewed. In Hicks v. Michael et al., 15 Cal. 107, in an appeal from an order refusing an injunction, the simple question is presented, whether an appeal from an order of this character can operate to create an injunction, or prolong a restraining order, until the ruling of the judge can be reviewed by the appellate court. ‘It is clear that no such effect can be given to an appeal, even when the most ample bond of indemnity is tendered. Where an injunction has been refused, there is nothing operative. A stay can only be sought of that which has an existence, and by its operation is supposed to work injury to appellant. It is therefore, from the nature of the case, only of orders or judgments which command or permit some acts to be done, that a stay of proceedings can be had. (Merced Mining Co. v. Fremont, 7 Cal. 130, 132.) Nor can an appeal operate
“An order dissolving an injunction is self-executing, and is not superseded by filing an appeal bond. 32 C.J., Injunctions, sec. 735, n. 18; 43 C.J.S., Injunctions, sec. 255; Manning v. Poling, 114 Iowa 20, 83 N.W. 985.
“A judgment not requiring or permitting, the doing of any act will not be superseded, there being nothing on which the writ can operate in the relief or aid of appellate jurisdiction. Lickley v. Board of Education of Los Angeles County, 62 Cal.App. 527, 217 P. 133; Southern Pacific Co. v. Smith, 171 Cal. 8, 151 P. 426; Tyler v. Presley, 72 Cal. 290, 13 P. 856; Erickson v. Municipal Court, 131 Cal.App. 327, 21 P.2d 480. When the judgment is rendered, and no process is required to be issued for its enforcement, no supersedeas is allowed. In fact, there is no necessity for such writ. There is nothing to stay or supersede.
“Nor do we feel that Gottwals v. Rencher, supra, would sustain appellant‘s contention. The receiver appointed in the court below made sale as ordered by the court, and filed his return and account of sale and petitioned for order confirming and approving said sale. Appellant there moved the court below for an order staying the hearing of return, account and petition, vacating the order setting said hearing, vacating said sale and for writ of supersedeas, which motion was denied. The appeal had been perfected before the sale, and notice thereof given respondents and the receiver through their attorneys, with a demand that they desist from further acts and proceedings with reference to said sale. Upon this state of facts the Supreme Court ordered a stay of proceedings for confirmation of sale, and vacated the order for such hearing, pending the appeal. In that case the order below required the doing of some act, i. e., that the receiver have the sale confirmed, as required by law. There was something on which the writ could operate and stay, something to be actively and affirmatively enforced, unless stayed. We point out that the court did not vacate the sale, as prayed, even though made after appeal had been perfected, there being nothing with reference to the actual sale then pending, on which the writ could operate. A writ of supersedeas will not function as a writ of certiorari or writ of mandamus. The remedy of supersedeas is usually regarded as injunctive or prohibitive in character and not corrective. Craig v. Stansbury, 37 Cal.App. 668, 174 P. 404.
“It follows therefore that supersedeas could not
“The contention that the injunction enjoined the bringing of any action against appellant concerning matters involved in the case appealed is likewise, we think, untenable. An injunction should be so clear and certain that a party may readily know what he is restrained from doing and that he must obey it at his peril. 32 C.J., Injunction, sec. 620, p. 369, 43 C.J.S., Injunction, sec. 206; Summers v. Farish, 10 Cal. 347. The restraining order here makes no reference to litigation, multitudinous, vexatious or otherwise. If the temporary injunction could be restored, it would therefore have no such effect as contended for by appellant.
“We think that Dodge Brothers, Inc. v. General Petroleum Corporation of Nevada, 54 Nev. 245, 10 P.2d 341, 13 P.2d 218; Lovelock Mercantile Co. v. Lovelock Irr. Dist., 51 Nev. 179, 272 P. 1; State v. Ducker, 35 Nev. 214, 127 P. 990; and Silver Peak Mines Co. v. Second Judicial District Court, 33 Nev. 97, 110 P. 503, Ann.Cas.1913D, 587, clearly distinguished between preventive and mandatory injunctions, determining that on an appeal from the temporary ‘mandatory’ injunction the appellant is entitled as a matter of right to a stay of proceedings under the injunction upon the filing of a proper stay bond. See also Gottwals v. Rencher, supra, deciding that stay bond be required only when necessary to protect appellee against damages he might sustain by reason of an unsuccessful appeal.”
The application for an order for a writ of supersedeas was accordingly denied.
We emphasize the opening paragraph of the foregoing opinion of Honorable Harry M. Watson with reference to the motion of the respondents to dismiss the notice of motion of appellant for a writ of supersedeas. This court has, on several occasions, condemned the practice of submitting a motion to dismiss a motion.
OPINION ON THE MERITS
Certain provisions of the Corey - Kress contract amounted substantially to this: The Coreys would obtain the consent of the Pauffs to the assignment of the lease; but, failing this, the Coreys nevertheless covenanted for the quiet and peaceable possession by Kress for the remainder of the term.
Eliminating for the moment all consideration of the subsequent suits brought by the Pauffs and the Coreys, as indicated in appellant‘s petition for a writ of supersedeas, and as indicated by respondents’ contention that the subsequent suit by the Coreys made declaratory action moot, and having in mind only the situation as it appeared to the district court at the time of the submission of the general and special demurrers to the amended complaint filed by the respective groups of the defendants, we find the following situation: The Pauffs had served on the Coreys a notice of termination of lease by reason of a breach of the covenant against assignment and subletting without written consent. Less than two months later the Pauffs served on Kress
There has been much discussion by respondents of the asserted rule that an action for a declaratory judgment is not a substitute for other and ordinary actions open to a party as a matter of right, but respondents have not indicated what these actions or defenses would be under the situation presented by the amended complaint. Let us explore the question as to whether such other and ordinary actions or defenses were effectively open to him without resort to the declaratory judgment act for relief. Independently of his contract with the Coreys, he faced an unlawful detainer action as threatened by the Pauffs. Against such action his analysis of possible defenses might include. (1) “My information is that your lease to Corey does not contain a covenant against assignment or subletting; therefore, I am safe in my assignment of the lease. (2) The instrument, under which I am holding, creates only a license in me to occupy the premises and is therefore not a violation of a covenant against assignment and subletting. (3) The covenant against assignment and subletting is so unreasonable as not to be enforceable—at least to the extent
But whatever position Kress might be taking as to the foregoing situation, he was confronted with the very imminent possibility that the threatened action by the Pauffs would result in a restitution of the premises to them. Was he compelled to await this outcome, and in the meantime continue to make monthly payments of rental to the Coreys and monthly $1,000 payments to them on his promissory note? Or was he not entitled in some way to effect a suspension of such payments to the Coreys until it could be judicially determined that such payments were not on account of a consideration that had materially failed? If entitled to relief of this nature, how could he accomplish it? In filing his complaint for a declaratory judgment determining the rights and liabilities of the several parties, is he simply, as asserted by respondents, asking the advice of the court? The prayer of his complaint is for a temporary injunction or injunction pendente lite to preserve the status quo, that he be permitted pendente lite to make his monthly payments into court, that pendente lite the Coreys be restrained from negotiating the promissory note, and that upon the hearing upon the merits, he be adjudged to be in the lawful possession of the property, or, otherwise, that the financial situation between him and the Coreys, including credits for the failure of consideration of the Corey-Kress contract and including damages suffered by him by reason thereof, be determined.
If we accept the allegations of the amended complaint as true, then it would appear that no controversy would have arisen either between the Pauffs and the Coreys (see notice of cancellation of lease) or between the Pauffs and Kress (see three day notice to quit) or between the Coreys and Kress (threatened failure of consideration to Kress if he is dispossessed, and threatened forfeiture of his contract if he fails to make his payments promptly), if the Pauffs had consented to the assignment from the Coreys to Kress. Kress would then have been protected in his tenancy to the end of the term, the rentals would have been paid to the Pauffs, the monthly payments made to the bank for the Coreys and duly credited on the note, and the bill of sale in due course delivered out of escrow by the bank to Kress—all subject to the exercise by any of the parties of their remedies in case of breach of the covenants of their contracts. The controversies arose, and the present impasse was reached, when the Pauffs refused to consent to the assignment. Not only had the Coreys covenanted to procure such consent (with the alternative heretofore mentioned) and not only had they failed to obtain it, but, again accepting the allegations of the amended complaint as true, they wrongfully and by
The foregoing analysis of the situation appears to us to be essential before laying alongside of appellant‘s claims for relief the yardstick of the declaratory judgment act and the construction placed upon that act under similar or analogous situations by the courts and the text writers.
The State of Nevada adopted the Uniform Declaratory Judgment Act in 1929. It was first adopted in Tennessee and Wyoming in 1923.
In the many hundreds of cases that have reached the courts of last resort in the various states (which have not hesitated to draw upon the decisions of the courts of England, Scotland, Canada, Australia and others) there has naturally been built up a structure of case law prescribing the conditions and defining the limits under and within which declaratory relief may be obtained. Appellant and respondents have both cited State ex rel. La Follette v. Dammann, 220 Wis. 17, 264 N.W. 627, 628, 103 A.L.R. 1089, which, citing Brochard, supra, crystallized the requirements for declaratory relief as follows:
“The requisite precedent facts or conditions which the courts generally hold must exist in order that declaratory relief may be obtained may be summarized as follows: (1) there must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy, that is to say, a legally protectible interest; and (4) the issue involved in the controversy must be ripe for judicial determination. Declaratory Judgments, Borchard, pp. 26-57.”
Respondents insist that none of these conditions have been met by the amended complaint, while appellant insists that the pleading shows the existence of all of them. With the latter view we are in accord.
Respondents rely on the La Follette case above cited, and in which relief was denied on the ground that only the advice of the court was sought, but the case is clearly distinguishable. The Governor of Wisconsin desired to make various appointments (a) in cases where the incumbents’ terms had expired and they were holding over, (b) in cases where the incumbent had died and a
The same applies to City and County of Denver v. Lynch, 92 Colo. 102, 18 P.2d 907, 86 A.L.R. 907. As to the thirteen interrogatories propounded, the court held that they were but remotely connected with the litigation, many of them were abstract and many of them involved the settlement of mere academic questions.
Respondents rely strongly on Washington-Detroit Theater Co. v. Moore, 249 Mich. 673, 229 N.W. 618, 68 A.L.R. 105, which upheld the constitutionality of the Michigan Declaratory Judgment Act—the original act having been held unconstitutional by the same court in Anway v. Grand Rapids Ry. Co., 211 Mich. 592, 179 N.W. 350, 12 A.L.R. 26. The court recited numerous holdings as to conditions under which declaratory relief
Before leaving the Washington-Detroit Theater case it should be noted that Borchard criticizes the recited conditions mentioned in this dictum and says that the quoted A.L.R. notes are not sustained by all of the authorities cited—a number of the cases not being actions for a declaratory judgment at all. He also criticizes the limitation, though it applies in most cases, that the declaration may not be had when the danger
Respondents also place great reliance on the case of Millard County et al. v. Millard County Drainage District No. 1 et al., 86 Utah 475, 46 P.2d 423, 425. In that case plaintiff filed a quit claim title suit against certain named defendants claiming some interest in the land. Millard County attempted to join as a plaintiff against other defendants claiming interests in other lands not described, “so that not only have we two parallel and independent suits in the same action in which the only cohesive is the fact that there are law points in common which will be controlling in both cases, but we have one of the law suits without any definite subject-matter upon which a judgment can operate. * * * The statute did not intend to dispense with the necessity of having a particular and specific subject-matter such as a particular piece of real estate, chattel, person, written instrument, chose in action, debt, estate, fund, or other definite subject in respect to which the litigation applied or upon or in regard to which a judgment could operate.” Here both the Kress-Corey controversy and the Kress-Pauff controversy operate upon the same thing—the right to the possession of the cafe property. The two controversies are more in the nature of those described as being “hooked up in series,” in regard to which the same court says: “In some cases controversies may also be hooked up in series. This is when they are so connected as to make it imperative to determine one as a condition for determining the other.” This problem is peculiarly present in the instant case. See, also, in this regard: Webb-Boone Paving Co. v. State Highway Commission et al., 1943, 351 Mo. 922, 173 S.W.2d 580;
Respondents insist that rather than a present controversy, appellant‘s amended complaint simply pleads a fear that certain controversies will or may arise in the future, that they are remote and contingent and may not be reached by a declaratory suit. In support of this contention respondent relies upon Nashville Trust Co. v. Dake, 162 Tenn. 356, 36 S.W.2d 905, which approves earlier Tennessee cases to the effect that the statute does not contemplate declarations upon remote contingencies or abstract or incidental questions. Most other authorities agree with this principle under the general theory that an actual controversy must exist—or at least the ripening seeds of a controversy. In the Nashville Trust Company case, however, it appears that declaratory relief was sought by a judgment creditor of a beneficiary of a trust estate for life in order to determine what the rights of such judgment creditor would be after the decease of the beneficiary. The suit was brought during the lifetime of the beneficiary who had a life expectancy of over twenty years, and it was under such situation that the Tennessee court held that a construction or declaration of an issue so remote should not be made. To like purport is In re Straus’ Estate, 307 Pa. 454, 161 A. 547. During the lifetime of the life tenants of a testamentary trust the executors of the decedent‘s estate sought a declaration as to the rights of the remaindermen. It was alleged by the executors that it was important to determine whether the decedent‘s interests constituted a vested remainder so that certain tax liabilities could be determined. The court held, however, that such determination would have to await the filing of the accounts of the trustees upon the death of the life tenants. In support of such rule against declaration of future remote and contingent controversies, respondents also rely upon Mulcahy v. Johnson, 80 Colo. 499,
Respondents say: “Appellant would like to continue on with the Corey-Kress contract except that he fears what defendants Pauffs, the landlords, might do to him if he so continues; i. e., he fears that if he does so, the Pauffs will carry out what he considers their threat to remove him from the premises, * * * or, as an alternative, he would like to fail to perform the unperformed portion of the Corey-Kress contract by retaining the balance of the money that he owes the Coreys and enter into a new lease contract with defendants Pauff, except that he fears what the Coreys might do to him for breach of his contract with them if he does so.” This is perhaps not a strained picture of the situation, which is, however, a little more complicated. The Pauffs’ three day notice to quit, with the further notice that legal proceedings will otherwise be taken, is, however, not accurately characterized as something which “the appellant considers a threat to remove him.” Anyone would consider it a threat. It was not only a threat, it was a definite notice that a dispossessory action would be commenced, and it was also a definite statutory prerequisite to the bringing of such an action. It followed the notice by the Pauffs to the Coreys of termination of the tenancy by reason of the breach of the covenant against assignment and subletting. The “fear” of what the Coreys might do was of just as present a controversy as witnessed by the action brought against Kress by the Coreys, as disclosed by the supersedeas record herein to which both parties have referred.
The cases are full of examples in which actions for declaratory relief have been entertained to determine
“Joy Company contracted to paint a Grace Hospital Society building for $10,995. It subcontracted the painting to one Hawley for $10,000. The subcontract authorized Joy Company to complete the work under certain contingencies and, in such event, to deduct the expense incurred from moneys due or to become due Hawley, with Hawley also agreeing to pay any expense so incurred in excess of moneys due him as well as any liens arising out of his default. The New Amsterdam Casualty Company entered into a surety bond on behalf of Hawley to the Joy Company. Hawley defaulted. Joy Company completed the painting. Two lien claims, aggregating $1,670, were filed. The Hospital Society refused to pay Joy Company a balance of $1,890 and Hawley and his surety refused to discharge or take action with respect to the lien claims. Joy Company‘s
action for a declaration of the rights between itself, Hawley and his surety, the lienors and the Hospital Society was upheld. The declaration of the rights of the Joy Company against the Hospital Society was contingent upon the declaration of the rights of the lienors, and against Hawley‘s surety was contingent upon the rights of said lienors.”
In Tolle v. Struve, 124 Cal. App. 263, 12 P.2d 61, 63, defendants Struve had executed a ten year lease to plaintiffs and covenanted to build a theater and store building on the premises. Plaintiffs subleased to defendant Clark who entered into a partnership with defendant Atkinson. The Clark and Atkinson interests thereafter vested in Sutton, the appellant. Defendants Struve had conveyed to defendants Lavery and Gustin. Thereafter Sutton claimed the construction to be faulty and the building to be deteriorating and for such reasons attempted to terminate her tenancy under her sublease. The plaintiffs refused to agree to such cancellation, but on the same ground attempted to terminate their liability under their original lease. The owners refused and plaintiffs brought their action for declaratory judgment, joining as defendants the original lessors and assignees, the present sublessees and the intermediate sublessees, asking for a construction of the two leases involved and the rights of the parties thereunder. The court declared the rights of all of the parties, holding them all bound by the lease and the rentals due between the parties, respectively. Sutton appealed, contending that there was no justiciable controversy. The court said, adopting the opinion of the trial judge:
“‘I do not believe a pleading fatally defective which states facts from which it is manifest that there is such a controversy, though the pleading does not label it a controversy, or say, in so many words that, as to a given issue of law, one party has thrown down the gauntlet. But, however that may be, it does appear, from the complaint, that the defendants, Clark, Sonne-
man, and Sutton became obligated to the plaintiffs upon the sublease; that, having succeeded to the interests of the rest, the Suttons undertook, under claim of right based on the alleged condition of the building, to cancel the sublease, and refuse to pay rentals thereunder and claim no longer to be bound thereby, and that the plaintiffs refuse to acquiesce in such cancellation. This, I think, is tantamount to saying that the plaintiffs dispute the legal right of the Suttons to do what they have undertaken to do. It further appears from the complaint that the plaintiffs, under claim of right based on the alleged condition of the building and the alleged failure of their lessors to properly maintain it, undertook to cancel the basic lease, and that Mrs. Lavery and Gustin refused to acquiesce in that cancellation, and claim that the plaintiffs had no right to terminate the lease. It cannot be gainsaid, therefore, that the complaint shows an actual controversy between the plaintiffs and Mrs. Lavery and Gustin, and that the two controversies are very intimately connected together. The complaint, therefore, does show on its face that there are “actual controversies relating to the legal rights and duties of the respective parties.“‘”
“We are satisfied that appellant is arguing for too narrow a construction of our declaratory relief statute, and one which, if adopted, would seriously impair a statute which has already proved, and should hereafter increasingly prove, a valuable enlargement of the judicial power of our courts. It was a defect of the judicial procedure which developed under the common law that the doors of the courts were invitingly opened to a plaintiff whose legal rights had already been violated, but were rigidly closed upon a party who did not wish to violate the rights of another nor to have his own rights violated, thus compelling him, where a controversy arose with his fellow, to run the risk of a violation of his fellow‘s rights or to wait until the anticipated wrong had been done to himself before an adjudication
The opinion of Judge Yankwich, in Maryland Casualty Co. v. Hubbard, D.C., 22 F. Supp. 697, 700, has been cited with approval in a great many cases. He held that an insurer issuing a nonownership public liability policy to an employer whose employee, while operating an automobile with the consent of an owner protected by a public liability policy containing omnibus clauses, caused injuries, could maintain a bill for declaratory relief against the owner‘s insurer on the theory that the employer‘s insurer‘s policy was merely excess coverage, that the automobile owner‘s insurer‘s policy was primary coverage, and that the owner‘s insurer had the duty of defending the injured party‘s action against the alleged employee and employer, notwithstanding the automobile owner was not a party to such action. Quoting Borchard, the opinion emphasizes the fact that the trend is to extend the benefit of the declaratory judgment acts to the interests of parties which are jeoparded or challenged even before a right of action exists or a cause of action accrues. The cases are collected and digested, including many of the cases referred to in this opinion, and the learned district judge agrees with the cases cited to the effect that “the benevolent purposes of the statute should not be thwarted by narrow and technical construction,” and that the declaration should be made “whether there be a cause of action or not” (other appropriate facts appearing). The court held “that the preventive character of declaratory relief permits the adjudication of the relationship between the
In a timely article entitled “Atrocities of Declaratory Judgments Law” by William P. S. Breese (31 Minnesota Law Review, 575, published in May 1947), the author refers to many “basic misconceptions and misapplications” of the declaratory judgment acts as revealed in recent decisions. These are declared to result from (1) failure to appreciate the declaratory judgment as an alternative remedy, (2) failure to recognize it as a remedy based on a justiciable controversy, and (3) failure to recognize it as a remedy sui generis. Numerous cases are cited in which the author claims that the remedy was erroneously withheld (1) because another remedy was available, (2) where the coercive effect of other available relief was believed preferable, (3) where further administrative relief was available, (4) where the trial court was held not to have abused its discretionary powers in denying relief, (5) where the court failed to distinguish the declaration asked from a mere advisory opinion, and (6) where it failed to distinguish justiciable controversies. Although it is to be regretted that the apparent limitations of the purpose of the article did not permit citation and discussion of cases
Professor, Edwin Brochard, whose 1934 and 1941 editions of his work on Declaratory Judgments have been quite generally cited by the courts, has in a more recent article said: “The declaration has opened the shutters of the forensic camera much wider (than the limits of equity jurisdiction) and admits to judicial cognizance an entirely new group of interests, including aggrieved persons who, being prospective defendants to ordinary actions, were not theretofore perceived by the law until they were sued. They were not allowed to initiate proceedings. As already observed, the disquietude and uncertainty of a prospective defendant and obligor, like an alleged infringer of patents, the covenantors of a building restriction, lessees equally with lessors, justify judicial relief.” The Next Step Beyond Equity—The Declaratory Action. 13 The University of Chicago Law Review, 145, 159 (Feb. 1946). The views there expressed are likewise followed in a still more recent article by Mr. Duke Duvall of the Oklahoma Bar. The Declaratory Action, 21 Tulane Law Review, 559 (June 1947). Respondents will find reference in these articles to many cases, in addition to the ones respondents have cited, in which declaratory relief was denied for the same reasons here urged by respondents—that
Appellant and respondents both discuss at great length in their briefs questions dealing with the question of the propriety of the action of the court in “dismissing” the amended complaint upon sustaining the general and special demurrers thereto. In our view that the amended complaint states a cause of action for a declaratory judgment coupled with the other relief sought (though not necessarily all of it) and that the defendants are properly joined, it becomes unnecessary to pass on the points raised in such discussion.
Both parties likewise discuss at length the action of the court in issuing the original restraining order. It purported to restrain the defendants “pendente lite,” but contained provisions permitting prompt hearing and determination of motions to dissolve or modify it or keep it in effect. It was comparable to the better practice of issuing a show-cause order why an injunction pendente lite should not issue and temporarily restraining the defendants (proper bond having been given) pending the return of the order to show cause. It seems clear, in any event, that injunctive relief may properly be coupled with a prayer for a declaratory judgment. If this be so, we see no reason why, under the recognized practices and usages of equity, and under
A great deal of discussion is had by both parties with reference to the province of equity practice, and with reference to actions under the Uniform Declaratory Judgment Act, to award relief to prevent a multiplicity of actions. As we are satisfied that under sec. 11 of the act, and under the provisions of our civil practice act (
Neither the Coreys nor the Pauffs were prejudiced in making the bank a defendant. As the holder in escrow of certain documents and as the holder for collection of the note described it found itself subject to the conflicting demands of the parties and could probably have interpleaded them and been relieved from further responsibility. Virtually the same effect was achieved when it refused to answer and permitted its default to be entered. It thus remained subject to the orders of the court with reference to the disposition of documents still in its hands.
The parties briefed at length the propriety of that part of the trial court‘s order sustaining the demurrer which denied the plaintiff the right to amend. As it is our view that the amended complaint stated a cause of
That part of the order and judgment appealed from which purports to dismiss the action is hereby reversed, with costs, and the case is remanded with instructions to overrule the said demurrers and permit the respective respondents to answer, subject to the right in plaintiff further to amend his petition if he so desires, and for such further proceedings as may appear proper in conformity with this opinion.
EATHER, C. J., and WATSON, District Judge, concur.
At the time of the argument and submission of the above case the Court comprised TABER, C. J., DUCKER, J., and HORSEY, J. HORSEY, J., being disqualified, the Governor commissioned Honorable HARRY M. WATSON, District Judge of the Seventh Judicial District, to sit in his place. Thereafter, EATHER, C. J., was appointed to fill the vacancy caused by the death of DUCKER, J., and BADT, J., was appointed the fill the vacancy caused by the death of TABER, C. J. Thereafter, by stipulation of the parties, the case was resubmitted to EATHER, C. J., BADT, J., and WATSON, District Judge.