88 P. 97 | Idaho | 1906
(After making statement of the case.)— Since the judge specified no grounds on which he based his order dissolving the injunction, it must be assumed upon this appeal that it was made on either one or both of the grounds named in the motion. The first ground, that no motion was made to keep the order in force as required by rule 19 of the rules of practice of the district court, is untenable here, for the reason that we cannot take judicial notice of what rules have been adopted by the district court.' (Rev. Stats., sec. 5950; Dours v. Cazentree, McGloin (La.), 257; 11 Cyc. 739-744.) The rule relied on has not been brought to this court in the record, and we are therefore not informed as to its provisions. We doubt, however, if any valid rule could be enforced that would justify dissolving an injunction under this paragraph of the motion. The next ground assigned in the motion is equally untenable. It is contended by respondent in justification of the order of the court that under section 4289, Revised Statutes, where an injunction is granted on the complaint alone, it must be granted at the time the summons issues, and that it can never be granted thereafter upon the complaint alone. We think that contention is substantially correct, and in conformity with the provision of the statute. (Thayer v. Bellamy, 9 Idaho, 1, 71 Pac. 544.) The facts and circumstances of this case do not bring it within the prohibition of the statute. Here three several orders of injunction and as many writs were issued, but they were all in the same form and to the same effect, and the second and third amounted to nothing more than an extension of the time
The appellant has devoted a large part of his brief to a discussion of the sufficiency of the equities pleaded to sustain the action of the court in granting an injunction thereon. The trial judge held that the complaint when filed did disclose such equities as would authorize the issuance of an in
It is argued by counsel for respondent that since plaintiff has failed to specifically allege that the defendant has not connected with his boom any sluiceway, lock or fixture to permit the floating of logs around or through the boom without unreasonable delay, that the complaint for that reason is insufficient to support'an injunction. The condition of this case does not make it necessary for us to pass upon the burden of pleading in this instance, but it would seem, however, that the necessity for pleading a negative does not fall upon the plaintiff in this case, but rather upon the party who relied upon his compliance with the exception. Here the plaintiff has charged the defendant with having constructed and maintained such boom and obstruction “across” the stream so as to effectually “prevent” floating of logs past such obstruction, and that this condition had existed for a period of nearly four months prior to filing the complaint. This, at least, in the language of respondent’s counsel, “made a prima facie case tor the plaintiff,” and if the defendant has in fact pro
The complaint charges the defendant with violating a plain and undeniable equity vested in plaintiff, and one which must properly appeal to the sound discretion of a court of equity.. The motion made in the lower court to dissolve the injunction should have been denied. The order dissolving the temporary injunction is reversed and the cause remanded for further action in conformity with the views herein expressed. Costs awarded to appellant.