*1 P.2d 634 COMPANY, LAWRENCE WAREHOUSE Corporation, Plaintiff-Respondent, COMPANY,
RUDIO LUMBER Cor- poration, Henry Martin, Individually, and Clyde Sterner, officers, Individually, and as agents employees of Rudio Lumber Company, Defendants-Appellants.
No. 9556.
Supreme Court of Idaho.
Sept. *2 Moscow,
Peter Leriget, Raymond G. L.
Givens, Boise, appellants. *3 d’Alene, Knudson, Miller Coeur & TAYLOR, Justice.
respondent. ac- (respondent) brought this
Plaintiff injunction to permanent tion to obtain a prevent alleged trespassing by defendants plaintiff (appellants) lands to which possession claimed exclusive by it as lessee. virtue of a lease held exhibit as lease—attached to the Manufacturing, by Tensed A—executed prop- lessor, Inc., real certain described Benewah Plummer in erty village of thereon, and located county, drya kiln occu- provides premises are “to that the *4 pied of a field warehouse the conduct for month, tenancy month to on from a * * * of One rental aggregate for the complained trespass ($1.00).” Dollar The alleged complaint plaintiff;” as fol- was and that defendants have lows : trespasses threatened to continue such and operate have threatened to dry the kiln defendant,
“That the Rudio Lumber upon premises; located the leased and that Company, agents and and its em- trespasses such damaged have and continue Henry ployees, particular, and Mar- damage plaintiff. Clyde Henry tin and and Mar- Sterner tin, individually, Clyde Sterner, and preliminary injunction The motion for dividually, repeatedly, against have the July 14, noticed for protests plaintiff, trespassed On appeared that date and filed defendants land, buildings warehouse and a verified and The answer counterclaim. equipment plaintiff, of the have de- allegations answer denied of alleged chains, stroyed locks and cut have en- trespasses, trespasses, threatened and dam- lease, dry tered into kiln under ages. al- their defendants counterclaim “A”, as shown Exhibit have stored leged property posses- that no remains thereon, op- lumber have threatened to plaintiff upon sion of it can a which claim dry kiln, said all erate con- lien; warehouseman’s that Tensed com- trary rights plaintiff to the here- pany business; gone plain- has out that in.” tiff’s lease super- has been abandoned and by storage plaintiff seded contract between complaint alleged damage The also result- Stitzinger Company; Lumber that ing trespass plaintiff from and that had plaintiff longer any goods upon- no stores plain, speedy adequate remedy or law. premises the leased either Tensed prayer The temporary injunc- was for a Stitzinger companies; plain- and that tion; upon hearing tiff’s interference with busi- defendants’ permanent; plaintiff made and that recover operations damaged ness has defendants $5,000 damages. $150,000. the sum of Plaintiff filed with a mo- July clerk’s minutes for preliminary injunction tion for and an af- following: show the representative fidavit made plaintiff “The submitted matter plaintiff person same verified who —the Complaint, based the verified plaintiff’s complaint. alleged The affidavit support the Affidavits in thereof. trespasses repeated that defendants made defendants an offer of “The made into the area de- warehouse and “have posited moved Court call wit- removed lumber therefrom and/or authority nesses in from this thereof. *5 accepted the offer of It evident from the that “The Court testimony. proof principal plaintiff sought by denied oral the end in the and counsel or- “The heard and Court for, prayed injunction was the and action injunction the be issued.” dered that plain- preliminary injunction gave that the action, tiff sought all in the relief it the preliminary granting in- order the except damages. incidental This is further junction that motion therefor recites the by plaintiff shown made in record pursuant and was made under opposition this In its court. to defendants’ and petition cause, early hearing of this having “the examined Com- Court plaintiff represented pur- to this court that plaint in of and the Affidavit plaintiff’s preliminary suant to motion Preliminary Injunc- the Motion for September was dissolved tion; having the offer of and heard ground on the “that the for the need defendants, being there of the longer, same no existed.” file or of record counter-affidavit of ** herein; *.” Kellogg In Rowland v. Power & Water required posting approval and
After
Co.,
216, 225,
(1925),
40 Idaho
July filed an defendants ally is to be allowed where its effect counterclaim which amfended answer and give plaintiff principal relief original denials as contained same seeks, bringing he the cause without same affirma- answer and in substance the trial, neither should a original counter- allegations tive of the injunction be dissolved where its ef- claim, de- alleged addition that the and in give fect would be the de- such as to Company pos- is the Rudio Lumber fendant fendant relief he seeks plain- premises sessor described bringing the to trial.” cause lease; plain- that the officers tiff’s quoted approval The above was with repeatedly threatened corporation
tiff had Elder, 383, 387, put Gilbert of business the defendants out parties (1943). In that case plaintiff’s premises P.2d 194 both have actions from malicious; claimed the to remove timber prayed, in been addition opinion recites that involved. The $150,000 punitive damages land damages, actual had, $50,000. but the nature or extent sum dispos- is not disclosed. should be great caution; exercised with ing of the issue the court said: requirements of caution and sound
‘“ * * *
legal
only
discretion can
be had
process
due
of law has been
a full hearing;
it is indeed a delicate
variously held to mean a law which
power
requires
which
an abundance of
condemns,
pro-
hears before it
caution, deliberation
sound discre
inquiry,
ceeds on
judg-
and renders
*6
tion based
a full disclosure of the'
only
ment
C.J.S.,
after trial.’ 16
Con-
facts which demonstrate with reason
567, b., p.
stitutional Law
certainty
persuasiveness-
able
and
the-
“Here,
course,
of
River
Pack
probability
confiscation;
of
it cannot
Company
Lumber
interested
was not
be
soundly
exercised
was,
caution
is,
in the land
with
itself.
It
as
hearing
without
all
fact,
the relevant facts on
solely
'a matter of
interested
in
joined
the issues
with reference to'the
the timber
standing on the land—
probability of
cutting and
confiscation.” 75
converting it
mer-
into
:
complained
by petitioners
of
was to
(adopted
1958) permit
dure
in
granting
give
company
all
the relief
it
temporary
prevent
of
restraining
a
order to
really sought
hearing
ap-
on the
of an
irreparable injury
immediate and
to the
plication,
by
which
no stretch of the
applicant pending
applica
a
of
imagination, could be held to be a trial
preliminary injunction.
tion for
IRCP 65
of the cause on
merits
within
(b). This was not such a case. Here the
meaning
process’
of the ‘due
rule.”
application
preliminary injunc1
was for a
397
part provides:
‘similarly
findings
rule 86 in
set forth the
IRCP
[to]
rules
take effect on No-
of fact and conclusions of law which
“These
shall
1st, 1958,
grounds
vember
all
constitute the
of its action.’
and thereafter
inescapable
is
that since
laws and rules of
Procedure
The conclusion
Civil
rule
required
conflict
shall be
no fur-
a district court is
therewith
fact,
findings
findings
ther force or effect.”
make
something
than
more
must be based on
Previously
statutory pro
existing
presentation of the evi-
a one-sided
governing
injunctions,
visions
issuance of
398 oppor- heard, were denied an be opportunity
and the defendants to and an to tunity present opposition to opposition evidence make their a record of to the in- application. did not make junction. The court fact and of law as findings of conclusions Timely opportunity notice and an urges required by 52(a). Plaintiff to be heard are of the essence of due proof that the court considered an offer process, jurisdictional and are essentials of made and since defendants defendants Leonard, a judgment. valid Leonard v. 88 proof request did not offer of 485, ; (1965) 401 Armstrong P.2d 541 record, as- made a matter of it must now be Manzo, 14 U.S. 85 S.Ct. proof sumed either that the offered was L.Ed.2d 62. or that it was insufficient to de- ádmissible Plaintiff moved this court to strike preliminary in- from feat the for the “Appendix” defendants’ brief what is titled junction. proof The burden was on containing copies of numerous documents plaintiff. Moore, Practice, Federal Par. recording alleged transactions between 65.04(1), (2d 1955); ed. plaintiff, Am.Jur., having Manufacturing Company, Injunctions, 25. Plaintiff Tensed Stitzinger application upon complaint Company, submitted Lumber defend- ants, thereto, and the affidavit attached the de- also' to strike from defendants’ portions sepa- fendants were brief argument. entitled to call their wit- In a present plaintiff nesses and There rate motion evidence. moved to strike they occasion for an offer until letter addressed to this court defendants’ counsel, had a copies witness on the stand and were con- and the of two documents thereto, fronted ruling being plaintiff’s adverse the testi- attached the first mony proposed they to be motion elicited. in the court below vacate the Since place preliminary injunction, permitted agreement were not witnesses and an appropriate plaintiff stand make offers of between the and Tensed Manufac- and. testimony, presume that.they pro- turing Company we must reciting a settlement of a posed present testimony controversy parties, existing between those their, allegations plaintiff’s denials of which was submitted trial to the court -support and in of the affirmative injunc- basis for the dissolution of the allegations of their counterclaim. These tion. denied We the motions to strike at supported by allegations they denials and if the time per- were submitted and have evidence, were sufficient denial plaintiff reply to warrant of mitted to the documents injunction. procedure arguments followed sought to be stricken. Our effectively the court denied defendants their purpose give was to the motions more ma- *9 ture procedure provides consideration when the cause was That for a full hear- reached on ing required the merits. on the merits if the notice is given. The statute is as follows: In reaching case, our decision in this we “Upon hearing application the of an necessary helpful have not found it or to injunction upon for an notice to the refer to the arguments against documents or party, upon adverse or return of an which the passing motions were directed. In why injunction order to show cause an only they we note refer to evidence granted, upon appli- should not be or proper which would have been for consider- modify cation to dissolve or an in- by ation the hearing trial court on of the junction granted notice, where application for injunction. injunction granted applied or is granting preliminary injunc- order affidavits, wholly part upon for or in tion is reversed and the is remanded cause party application resisting the proceedings for further not inconsistent moving injunction may, to dissolve the opinion. with this by notice, days’ require three written appellants. Costs to party produce the adverse at the
hearing for cross-examination before judge, the court or affiants McQUADE, J.,C. and McFADDEN and upon affidavits which he relies for the SMITH, JJ., concur. injunction, application or to resist the DUNLAP, Judge (dissenting) District : dissolution; for any party so requiring party produce his adverse I am opinion unable to concur in his witnesses at hearing such must the court. produce cross-examination, himself for prior 1895, procedure pro- Since upon upon witnesses whom he relies Statutes, vided for Revised Section 4297 hearing; such party may and either (now interpreted by 8-411), Idaho Code as process have the same to secure the this court in Raft the case of River hearing, attendance of witnesses such Langford, Land and Cattle Co. v. upon trial of issue of fact court; P. has been the established case, district and in such where procedure rule of by the courts followed the attendance of witnesses shall have parties litigant preliminary injunc- required, been so no affidavit shall be tion hearing when a on the merits matters read judge or considered the court or party was desired opposing the in- such unless the affiant is junction. produced so for cross-examination:
provided, judge may, that the court or party, moving notice the adverse at the conclusion the examination of party required produce ‘to at the produced by respec- the witnesses hearing, for cross-examination before shown, parties, good tive for cause judge, the court or affiants adjourn enable either affidavits he relies party secure the attendance of an or to resist the affiant, may absent direct his exami- only for its dissolution.’ It is when writing nation to be before party taken opposing required the motion or *10 place respond such officer and at such time and to the order to show cause judge may designate. by required party as the court or moving has notice the any pro- affidavits, produce The examination of witness the affiants of his must, judge cross-examination, duced before the court or hearing at the for upon request party, of either be reduced opposing party that such is authorized affiant, writing, by required by produce the subscribed the statute to judge upon hearing.” certified the and filed witnesses the action, and, any examination taken (Emphasis supplied). with P. at 1029 compliance of the with the order upon The record in this case reflects that part the judge, court or be made a of preliminary due notice the motion for upon appeal manner in the same record junction July was heard on The part of such as are made a affidavits provided notice for I.C. 8-411 was not § 8-411. record.” I.C. § given by appellants; opposing no affidavits above, this In the Raft River case cited appellants’ were filed and answer and cross- court construed this statute as follows: day until the of were not filed “ hearing. the before As far as the record * ** will, think, appar- It we shows, respondent no notice ent, the court had sec- from an examination of this for Statutes, whatsoever that the motion con- tion of our that it is not opposed, or that hearing, would even be templated any therein that hearing the it be faced at the with would upon to show cause or either an order any controverting necessity injunc- meeting of an to dissolve appellants. produced by for, evidence whatsoever provided tion as in said section expect that the Respondent the upon had the shall be heard otherwise than and statutory procedure honored established affidavits pleadings in the case and seventy for over accepted by this court thereof, except support filed in hearing and at the where, years followed would be provided, said section majority opinion the affidavit filed The matter determined on reaches the con- support preliminary- procedure the motion for clusion of that established injunction. applicable I.C. 8-411 is not here because § adoption 65(a) of IRCP and IRCP spite sorry of state of record 52(a), suggests and that the code section deprived appellants, they made not were in conflict with those rules. I find can no of a on the court the merits for 65(a) provides only conflict. that proof. accept did offer This offer their of preliminary injunction issued shall be of not made a matter of record party, notice to the adverse slightest has not idea of this court pertains IRCP 52(a) making to the It have had contents thereof. could finding of fact conclusion law. utterly or it could have been ridicu- merit provides Idaho Code 8-411 for a full Upon basis, totally lous. some es- required pro- merits if the capes majority opinion, the writer this cedure is followed. It followed was not opinion reaches conclusion by appellants. in this case supported evidence offered would have opinion majority cites the case allegation of of the answer and the denials Greene, number 161 F.2d and a Sims cross-complaint. before the The record proposition other federal cases court fails to this conclusion. preliminary injunction not that a should assumed, any-
It must be in absence of pleadings issue and affidavits with- thing contrary, in the record to the that the opportunity party out to the adverse *11 trial court in the exercise of sound dis- produce quarrel testimony. I oral have no cretion considered the found it offer and proposition, I.C. with this but submit that without merit. provides opportunity for the 8-411 presentation estab- of oral evidence if the injunctive granting refusing The procedure lished due giving is followed relief rests in the sound discretion applicant. notice to the court and the exercise of such discretion refusing support court in motion granting trial affidavit filed temporary injunction injunction, a be reversed absence will not appeal contrary, under unless clear of discretion is abuse sufficient Unity Light Company is shown. & Power of the record before this court state City Burley, v. granting 361 P.2d court’s the trial order apparent temporary injunction No abuse discretion and the order from the record. findings contains con- sufficient of fact and satisfy provisions of
elusions of law 52(a). preliminary in- granting
The order
junction be affirmed. should P.2d DAWSON, Nampa doing W. business
H. Co., Plaintiff-Appellant, Lumber Eldredge, and Erma
Russell W. ELDREDGE wife, Defend- husband and ants-Respondents.
No. 9469.
Supreme Court of Idaho.
Sept. 15, 1965.