77 P. 334 | Idaho | 1904
— This action was commenced against the First National Bank of Coeur d’Alene and S. A. Varnam. Plaintiffs filed their complaint and supported the allegations thereof by five separate affidavits, and on the showing so made the district judge issued an injunction against defendants, enjoining and restraining them from further commission of the acts threatened and of which the plaintiffs complained. The injunction was served upon the defendants on the eleventh day of January, 1904, and thereafter, and on the thirteenth day of the same month, the defendants applied to the judge who ordered the writ for a dissolution thereof. This motion was made without notice to the plaintiffs and upon the papers used in obtaining the injunction in the first instance. After hearing the application of ’the defendants, the district judge made an
Plaintiffs’ first assignment of error is “that the court erred in dissolving the injunction without notice to the plaintiffs and without giving plaintiffs an opportunity to be heard in opposition to said motion." There is no merit in this assignment. We disposed of this question in Thayer v. Bellamy, 9 Idaho, 1, 71 Pac. 544, where it was said: “When the adverse party moves to dissolve a temporary injunction upon the papers upon which it was granted, no notice is required to-be given to the party who obtained the injunction, and no further showing care be made in opposition to such motion." (See Rev. Stats., sec. 4295.)
The other assignments made by appellants go to the merits of the case. The respondents, however, have presented a valid and sufficient reason for the dissolution of the injunction as to the defendant bank at least. They rely upon section 5242 of the United States Statutes (3 Comp. Stats., 1901), which, after making certain provisions against preferences in favor of creditors of national banks, concludes with the following prohibition: “And no attachment, injunction or execution shall be issued against such association or its property before final judgment in any suit, action or proceeding in any state, county^ or municipal court.” This statute is a complete bar to the issuance of an injunction by a state court against a national banking association. This view has been held by the courts so generally and uniformly that it requires no discussion here. (See Pacific Nat. Bank v. Mixter, 124 U. S. 721, 8 Sup. Ct. Rep. 718, 31 L. ed. 567; Freeman Mfg. Co. v. National Bank, 160 Mass. 398, 35 N. E. 865; Dennis v. First Nat. Bank of Seattle, 127 Cal. 453, 78 Am. St. Rep. 79, 59 Pac. 777; Garner v. Second Nat. Bank of Providence, 66 Fed. 369; Chesapeake Bank v. First Nat. Bank of Baltimore, 40 Md. 269, 17 Am.
For the foregoing reason alone the injunction was properly dissolved as against the bank. The same reason, however, could not be urged for dissolving the injunction as to the defendant Yarnam. The complaint, after alleging the corporate existence of the bank, shows that in June, 1903, the plaintiff, Edwin N. La Yeine, entered into an agreement of lease with one P. J. Seallon, who was then the owner of the leased premises, whereby La Yeine leased from the said Seallon three office rooms in Coeur d’Alene city for the period of one year, with the option of continuing the lease for the further period of one year upon the same terms and conditions. Thereafter, and on the 10th of July, 1903, La Yeine sublet two of the office rooms to the plaintiff, M. M. Meyer — subletting of the premises having been authorized by the lease. The rents were paid from time to time as they became due and the plaintiffs had installed their furniture and opened up business in the offices. Thereafter, and prior to the commencement of this action, the defendant, First National Bank, purchased from Seallon the property leased to and occupied by plaintiffs. It is then ehárged that the defendant Yamam, under contract with, and employment by, the defendant bank, on or about the nineteenth day of December, 1903, began to make changes and repairs about the building, and in doing so tore down and destroyed the partition between those rooms and adjoining rooms and injured and damaged some of the plaintiff’s personal property and office furniture and made excavations in front of the offices so that the patrons and clients of the plaintiffs could not reach their offices and place of business, and that in pursuance of the purposes and designs of the defendants, Yarnam had commenced the construction of a large brick wall which he threatened to build into and through the offices and rooms occupied by the plaintiffs and thereby render the offices unfit for use and occupation. It is also alleged that the defendant bank had threatened to oust and eject the plaintiffs from the rooms occupied by them, and that they were maliciously and willfully committing various trespasses for the purpose of annoying and disturbing the plaintiffs and of eventually driving them from
The willful commission of trespasses is outside of and beyond the authority and scope of powers granted to national banks, and becomes the personal and individual act of the officers or persons who commit or threaten to commit the same. We cannot see how a national bank, as such, can threaten to commit a trespass, but we can understand how its officers might do so and for such acts they would be personally liable. It was evidently the purpose of Congress to prohibit attachments and injunctions issuing from state courts against national banks, and it is equally certain that the purpose was not to protect them in the commission of torts and trespasses, but rather to prevent any interference with the legitimate business for which such banks are organized.
The complaint states a cause of action and upon its face entitled plaintiffs to a temporary injunction against the defendant Varnam. The contention of defendants that plaintiffs have an adequate remedy by an action at law and cannot therefore resort to an equitable remedy is not well founded. It is true that they have their remedy for damages, but under our statute, section 4288, Bevised Statutes, a party is not under the necessity of waiting till his property has been damaged and destroyed and Ms business disorganized and his premises encroached upon to the extent of his own ouster and then resorting to an action at law for redress. In Staples v. Rossi, 7 Idaho, 618, 66 Pac. 67, this court laid down the rule under our statute as follows: “Injunctions will issue to restrain temporarily an act which will result in great damage to the plaintiff, although the injury is not irreparable, and notwithstanding that other remedies lie in behalf of plaintiff.”
The order appealed from will be affirmed as to the defendant bank and reversed as to defendant Varnam. Costs awarded to appellants.