201 P. 1022 | Wyo. | 1921
The plaintiff below, plaintiff in error here, sought by this action to enjoin the defendants from establishing a public road across the lands of the plaintiff. The defendants were the board of the county commissioners, and the members of that board, individually, and as such commissioners. The prayer of the petition was that the defendants “be perpetually restrained from taking any further proceedings or doing acts with respect to locating said proposed road * * *, and particularly from confiscating or appropriating any of the rights, properties or lands of the plaintiff” for that purpose. Shortly after the commencement of the action a temporary injunction was granted upon the giving by plaintiff of an undertaking in the sum of $1500. The trial of the action resulted in findings for defendants, the dissolution of the temporary injunction, a denial of a perpetual injunction, and judgment for defendants for their costs. Thereafter, the plaintiff took the steps necessary to bring the case here for review, but did not attempt to obtain an injunction during the pendency of the case on error.
The case has been heard on the motion of defendants in error to dismiss the proceeding in error. It is shown by affidavits filed in support of the motion that at considerable expense to the county the road in question has been con
The principal contention in support of the motion is that the action being for injunction only, and the act sought to be enjoined having been done, there now exists no actual controversy requiring a review of the judgment. If it be made to appear to an appellate court that the questions involved are no longer of any practical importance to the parties the case will not be reviewed on the merits merely to determine who shall pay the costs. The cases cited by defendant in error illustrate the application of this principle to many different situations, but among them there is no case where it was claimed that the acts sought to be enjoined, and afterwards accomplished, constituted a trespass upon, or appropriation of, the property of the other party. And we understand that counsel concede that if the defendant in an injunction action, though not acting in violation of any temporary restraining order, do the thing against which the injunction is asked, the court is not thereby deprived of authority, whenever justice requires it, to deal with the parties as they stood at the commencement of the suit, and to require the defendant to make restitution— to undo what he has wrongfully done — or to answer in damages. (Mills v. Green, 159 U. S. 651, 654, 16 Sup. Ct. 132, 40 L. Ed. 293; Green v. Okanogan Co., 60 Wash. 309, 111 Pac. 226; Bonnewell v. Lowe, 80 Kans. 769, 104 Pac. 853; New Haven Clock Co. v. Kockersperger, 175 Ill. 383, 395, 51 N. E. 629, 632; Pennsylvania Co. v. Bond, 99 Ill.
But it is argued that this is not a case where justice requires that the appeal be entertained for the purposes above stated. We do not think this question should be decided now, for it is so involved in the merits of the case that its determination, which will require a consideration of the relative equities of the parties, should be left until the final hearing. (United Real Estate & Trust Co. v. Barnes, 157 Calif. 515, 108 Pac. 306.)
It will be noticed that many of the authorities holding that an appeal or proceeding in error will not be heard on the merits where it is shown that the relief asked cannot then be granted, assume that the dismissal is without prejudice to another action. (2 High, Injunctions (4th Ed.) § 1701a; Meyn v. Kansas City, 91 Kans. 29, 136 Pac. 898; McWhorter v. Northcutt, 94 Tex. 86, 58 S. W. 720; People v. Board of Canvassers, 2 N. Y. Supp. 561; Hicks v. Pearce, 158 Mich. 502, 122 N. W. 1087; Henderson v. Hoppe, 103 Ga. 684, 30 S. E. 653; Texas & P. R. Co. v. Interstate T. Co., 155 U. S. 585, 15 Sup. Ct. 228, 39 L. Ed. 271; Lockwood v. Wickes, 75 Fed. 118, 123.) In other cases where the relief asked has been denied by the trial court, and it appears on appeal that the exact relief cannot then be granted, yet, if the judgment below denying the relief be an adjudication of any substantial right, which might be the basis of some future action, it is held that the judgment should be reviewed. (Kaufman v. Mastin, 66 W. Va. 99, 66 S. E. 92; 25 L. R. A. (N. S.) 855; Postal Tel.-Cable Co. v. Montgomery, 193 Ala. 234, 69 So. 428; Central etc. Co. v. Highland Park, 164 Mich. 223, 129 N. W. 46; Clarke v. Beadle Co., (S. D.) 169 N. W. 23; Independent School Dist. v. Pennington, (Iowa.) 165 N. W. 209; Livesley v. Johnston, 45 Ore. 30, 76 Pac. 13; Winsor v. Hanson, 40 Wash. 423, 82 Pac. 710; Hampton v. Lynch (Okla.) 153 Pac. 1119; State
In the case at bar, the dismissal of the proceedings in error would have the same practical effect as an affirmance of the judgment of the lower court, and while we do not deem it advisable, in deciding the motion to dismiss, to make an investigation of the issues sufficient to determine what matters would upon dismissal become res judicata, we think it at least probable that the plaintiff in error would, by the judgment, be estopped from asserting, in another action, substantial rights, which, if the judgment be erroneous, should be preserved.
The operation of the judgment below as an adjudication fixing or affecting the liability of plaintiff in error for damages in a possible future suit on the injunction bond is not urged as one of the reasons for denying the motion to dismiss. Perhaps, for some reason not called to our attention, the judgment, in respect to that matter, is not material or effective. There is good authority for holding that, in similar cases, because of the possible liability upon the bond, the proceedings for a review of the judgment which has determined the right to the injunction is of such practical importance as to require a decision upon the merits. (Postal Tel.-Cable Co. v. Montgomery, supra; Williams v. Montgomery, 148 N. Y. 519, 43 N. E. 57; Sackett etc. Co. v. National Ass’n. etc., 113 N. Y. Supp. 110; Click v. Sample, 73 Ark. 194, 83 S. W. 932; Crom v. Frahm, (Ida.) 193 Pac. 1013; Morrison v. Hess (Mo.) 231 S. W. 997. Contra: Horrabin v. Iowa City, 160 Iowa 650, 130 N. W. 150, 142 N. W. 212; Geinger v. Krein, 103 Kans. 176, 173 Pac. 298; cases cited Crawford v. LeFevre, 78 W. Va. 73, 88 S. E. 1087.)
It is further shown, in support of the motion, that those defendants who, when the action was commenced, constituted the board of county commissioners, are no longer members of that board, and it is contended, therefore, that a judgment for plaintiff would be ineffectual. Upon this point the defendants in error cite People v. Clark, 70 N.
We are of opinion that the ease should not now be concluded in the summary manner suggested by the motion, as it does not appear clearly that there is no substantial light depending upon a decision as to whether or not the judgment below shall stand. A further consideration of this point, after a hearing upon the merits, may lead to a different opinion, making it then proper to dispose of the case without deciding the questions raised by the petition in error.
The motion is denied, and the defendants in error are given forty-five days from this date to serve and file briefs upon the merits.
