4 Nev. 138 | Nev. | 1868
By the Court,
The facility with which injunctions have been obtained from the Courts in this State seems to have made the application for them almost a matter of course in every conceivable character of case.
When the law appears to afford no specific remedy for some petty annoyance or imaginary wrong, this writ is applied for as if it were the great sovereign and infallible remedy — the legal panacea for every ill that may arise in the complicated affairs of man. But unfortunately, perhaps, the writ of injunction does not possess these marvelous virtues and limitless powers. Its office is limited, and it is generally employed only as an auxiliary remedy.
Before specially discussing the sufficiency of the plaintiff’s bill in this case, it may be well to state some, of the general and fundamental rules governing the issuance of the writ of injunction, and which have a bearing upon this case.
The writ is exclusively an equitable remedy. But equity is chary of its powers: it employs them only when the impotent or tardy process of the law does not afford that complete and perfect remedy or protection which the individual may be justly entitled to. When therefore it is shown that there is a complete and adequate remedy at law, equity will afford no assistance. “ When a party has a remedy at law,” says Mr. Hilliard, “ he cannot come into equity, unless from circumstances not within hi§ control he could not avail himself of his legal remedy.” (Hilliard on Injunctions, Sec. 23.) “ That full compensation can be had at law is the great rule for withholding the strong arm of the Chancellor,” says Mr. Justice Thompson, in Rusey v. Wright, (31 Penn. 396). See also Thompson v. Matthews et als., (2 Edwards Ch. R. 213; 9 Paige R. 323). Before refusing its aid upon this ground, however, it must appear that the legal remedy is complete and adequate to afford the complainant full redress; but when that fact does appear, equity at once relinquishes all control over the case, and leaves the party to pursue his legal remedy.
Another rule having an important bearing upon this ease is, that an injunction is only issued to prevent apprehended injury or mis- > chief, and affords no redress for wrongs already committed. (Practice/ Act, Sec. 112.) “Injunction,” says the learned author already quoted, “ is said to be wholly a preventive remedy. If the injury be already done the writ can have no operation, for it cannot be applied correctively so as to remove it. It is not used for the pur
It must also be made to appear that there is at least a reasonable probability that a real injury will occur if the injunction be not granted. This extraordinary writ should not be issued upon the bare possibility of injury, or upon any unsubstantial or unreasonable apprehension of it. The injury, too, must be real, and not merely theoretical.
If the propositions, or rules, thus stated be correct, it is clear that the plaintiff’s bill is utterly insufficient to entitle him to the relief prayed for.
The several specific causes of complaint which it contains will be noticed in the order in which they are’presented in the bill. After stating that he is a stockholder in the Magnolia Gold and Silver Mining Company, the plaintiff alleges that: “ The defendant is now, and for a long period of time has been, the acting Superintendent of such Magnolia Gold and Silver Mining Company, and is now, and has been for a long time acting as Trustee, Secretary and Treasurer of said company; that by law the said Magnolia Gold and Silver Mining Company is entitled to three Trustees, and it is provided by law that the business of said corporation should be managed and conducted, and the mine of said corporation worked, under the supervision and control of said Board of Trustees. That the office of one of said Trustees has been declared vacant, and that one J. W. Brown is a Trustee and President of said'corpora- , t-ion, and that there are no Trustees of said corporation but said Brown and the defendant herein.” And thus plaintiff alleges the defendant “ has attempted to remove his co-Trustee and the President of the said company, and has published notices in the public
This allegation begins by charging that the defendant had attempted to remove ‘Brown from his office. He seems, however, to have been rapid in his manoeuvres, for we find at its close that Brown is removed and no longer occupies his position. To be removed from his office was, perhaps, an injury of which Brown might justly complain, and the law, upon a proper showing by himself, would doubtless restore him ; but that it is a ground for an injunction is by no means so clear. It is not claimed that the defendant is himself acting as President. His moderate ambition contents itself with four positions in the corporation, and exhibits no desire to fill the fifth. But if it were shown that he was discharging the duties of President of the corporation, that of itself would not authorize the issuance of an injunction upon the application of a stockholder. It would be necessary to show that he was doing, or threatening to do some act which, if done, would result in great or irreparable injury to the corporation. As we have already stated, the writ of injunction is a preventive remedy, and only issued to restrain the commission of some real injury. Brown could not be restored to his office by a proceeding of this kind; a mandamus or quo tvar-ranto would be the proper proceeding for that purpose. We could not in this suit restore to him the books and papers which may have been taken from him, nor anything else belonging to his office. Whether he is entitled to anything belonging to the office, or has a right to do anything connected with it, can only be determined by trying his right to the office itself, which cannot be done upon an application for an injunction. But the prayer of the bill is: “ That the said defendant, his agents,, servants and employés, be enjoined and restrained from interfering with the books and other property of the said Magnolia Gold and Silver Mining Company, and from exercising any of the functions of Treasurer, Trustee, Superintend
Whether Brown, as President or Trustee, would be entitled to the possession or control of any of the books which the defendant is charged with having seized, does not appear. The Presidents of such institutions are usually things of ornament rather than utility, and'there is nothing, in the bill in this case to satisfy us that that officer in the Magnolia Company is an exception to the general rule. The plaintiff’s bill does not show that the defendant was not alone entitled to the control of the books taken by him, nor that the keeping of them by him will result in any serious injury to the company, whilst it is self-evident that, to prohibit the working of the mine and the keeping of the books would be likely to occasion such injury. An injunction may probably be issued on the application of a stockholder to restrain the doing of some act by the officers, which, if done, would result in injury to the company; but if the act be done, an injunction can afford no remedy. If an officer is wrongfully removed from his office it cannot restore him to it; if the books are already 'taken, this writ cannot compel their return, nor restrain interference with them, unless such interference is likely to result in real injury to the corporation, which in this case is not shown. ’ We conclude, therefore, that there is nothing in this first charge against the defendant warranting the issuance of the writ.
The substance of the next allegation is, that the defendant, without the consent of the Board of Trustees, removed the office of the company from the place established for it to some other part of the City of Austin, and from place to place, thereby concealing the same from the said President and stockholders of the said company.
If in fact the defendant has, as charged in this count, unlawfully issued stock to himself, the company has a complete remedy at law against him ; and with a proper showing an injunction would issue to. restrain him from transferring such stock to any third person: but that is not the remedy sought by the plaintiff. Nor does this allegation make a sufficient showing to entitle him to that remedy, even if he had asked it. To be sufficient for that purpose a full statement of the facts constituting the illegality of the stock issued would be necessary, and he might be enjoined from issuing any more stock,
The next charge against the defendant is, that he deposited money which he had in his possession, belonging to the company, with a mercantile house in the City of Austin, and while such money was so on deposit, refused to pay certain creditors of the company their just claims against it. The plaintiff’s bill gives no i reason why the defendant should not have deposited the money as he did. In the absence of special circumstances, we presume it was his duty to deposit it where it would be most secure. That he has not done so, does not appear from the bill. The defendant may have considered Cook Brothers, with whom he made the deposit, as safe as any of the banking institutions of the city, and we know of nothing making it his duty to deposit it with one more than the
The next charge against the defendant is, that he is applying for a patent under the laws of the United States for the Magnolia mine, and is thereby involving the company in proceedings which will, if persisted in, result in great damage to the stockholders. If the application for the patent is on behalf of, and for the benefit of the company, the defendant would seem to be simply discharging his plain duty. An application for a patent in the regular way, and in accordance with law, appears to be an advantage rather than a detriment to the company. There may be some circumstances connected with the matter which would place a different phase upon it; but nothing of the kind appears in the bill. We find the simple allegation, the substance of which is stated above. If the application for a patent was likely to’ be prejudicial to the company, the facts showing such to be the case should have been fully stated, so that the Court might itself judge whether it would be injurious or not. ' The allegation in its present form is nothing more than an expression of opinion by the plaintiff that the application for a patent ■would be injurious to the company. That is not sufficient; the
It is next alleged that defendant is “ working the said mine for the said company without any control from the Board of Trustees empowered to supervise the working of the same, and contrary to the order of the said President.” It is not alleged that the mine is being worked in a manner injurious to the stockholders. Nor indeed is there anything in the bill to justify the conclusion that the mine is not being worked in the best manner possible, and to the entire satisfaction of all the stockholders, except the plaintiff. The President probably has no more authority or power with respect to working the mine than the defendant has. That the defendant refuses to submit to the control of the Board, would not therefore seem to be a very strong ground for the interposition of equity. If the defendant is managing the mine judiciously, and in furtherance of the best interests of the stockholders, it would be unjust to stop all operations simply upon the application of one dissatisfied stockholder ; and upon such a showing as is made here, it cannot be done.
The bill concludes with the allegation that the defendant is continuing, and threatening to continue, the unlawful and wrongful acts complained of, to the great damage of the stockholders, and especially to the plaintiff. But as we have endeavored to show, none .of the acts complained of authorizes the issuance of an injunction ; most of them not even showing the slightest cause of complaint. To allege that the defendant is continuing them cannot therefore aid the plaintiff’s case, and the bill taken as an entirety can satisfy no one that any great injury or damage to the company is likely to result from the possession and control of the books, and the management of its property by the defendant.
Although it is quite apparent from the record that the New York and Austin Silver Mining Company should have been made a party to this action, still as that question was not raised by counsel, and as our present conclusion is against the plaintiff, it was thought best to pass upon the merits of the bill itself.
The judgment of the Court below is affirmed.
The affirmance of the order of the lower Court meets my approval on this distinct ground — that the plaintiff shows no right in himself to maintain the action. Suit was brought by Sherman as plaintiff in his individual name, whereas he shows by the complaint that the seventy-nine and a half shares of Magnolia Company stock were held by him exclusively in the character of a trustee for the Austin Silver Mining Company- — a foreign corporation. It is not even shown by the pleading that the plaintiff is a stockholder, or has an interest in either of the corporations; ■ nor, are there any special circumstances appearing to authorize him' to wage a contest with defendant concerning any of the alleged grievances. To all intents and purposes the plaintiff by his own showing, is so far an outsider that he could not properly bring the action in his individual name. This point it is true was not taken by respondent on the argument, nor does the record disclose the particular grounds — as it need not — on which the Court below refused the injunction. But if the decision of the District Court be right, although the reason be wrong, surely this Court should not disturb it. Much less therefore the propriety of doing so, because the respondent’s counsel overlook a material point in the case, and perhaps the most tenable ground upon which the decision can be sustained. The duty of this Court, as I understand it, is to decide upon the entire record of the case as presented, and not in conformity, with the peculiar views and arguments of counsel. -The ruling of the District Court, in refusing the. injunction, is clearly defensible on the ground stated, whereas upon the points discussed — some of them at least, in my view — it may be more questionable. Yet as this appeal is merely from an interlocutory order, pending the trial of the cause ■ on its "merits, I shall not anticipate the District Court in passing* upon any of these questions now.