107 P.2d 885 | Mont. | 1940
Lead Opinion
This is an application for a writ of review or other appropriate writ to set aside certain injunction orders.
The pertinent facts giving rise to the allegedly void orders are as follows: On November 8, 1939, one Louise McKenzie as plaintiff commenced an action in the district court of Sheridan county against Clifton K. McKenzie, defendant, formerly her husband, relator here and referred to as such. In that action she sought to set aside and cancel a deed of record to certain real property which she had executed and delivered to relator during the marriage of the parties. No injunctive relief was asked for in the complaint, and the action apparently is still pending on defendant's motion to strike certain matters from the complaint. The property covered by the deed in question consists of a dwelling house which at the commencement of plaintiff's action was under a month to month tenancy to one Eamon. Each of the McKenzies made separate demands of Eamon in their individual behalves that he pay the rent to one and not the other, and vice versa. Eamon having failed to comply with relator's demands, on April 8, 1940, was served by relator with a notice of a change in the terms of his lease. Thereafter, on April 17, 1940, plaintiff swore to an affidavit for injunctive relief in an effort to restrain relator from interfering with her possession of the property, or the tenancy of Eamon during the pendency of the action on the deed. She also asked that the *243 court order Eamon to pay rent due and to become due to the clerk of the court pending the outcome of the action.
The judge of the district court signed an order to show cause and temporary restraining order on April 22, 1940, based apparently on the motion and affidavit of plaintiff. These orders were served on relator, but no copy of the affidavit on which such orders were based was served on him prior to the day set for hearing of the show cause order, nor prior to the subsequent signing of an injunction pendente lite. Relator made no appearance at the hearing but subsequently filed a brief covering the issues and his motion for dismissal of the injunction proceedings and dissolution of the temporary restraining order.
The question to be determined is whether the district court had jurisdiction to issue the injunction pendente lite in the face of a record before it failing to disclose that the affidavit on which the restraining order and order to show cause were based had been served on relator.
Injunction proceedings are prescribed and regulated by Chapter 43 of the Revised Codes. Section 9244 provides:
"The injunction order may be granted at the time of issuing the summons upon the complaint, or at any time afterward, before judgment, upon affidavits. In the one case, the complaint, with or without affidavits to support it, and, in the other, the affidavits shall show satisfactorily that sufficient grounds exist therefor. An injunction order shall not be granted on the complaint alone, unless:
"1. It be duly verified;
"2. The material allegations of the complaint, setting forth the grounds therefor, be made positively and not upon information and belief.
"When granted on the complaint, a copy thereof, including the verification, shall be served with the injunction order; when granted upon the complaint, with affidavits to support it, or upon affidavits alone, a copy of the affidavits likewise shallbe served with the injunction order. Any person qualified to serve a summons may serve the order and affidavits." *244
In the instant cause, the injunctive redress was instituted on[1] affidavit after complaint filed, and not upon the complaint alone. The above quoted section specifically provides that when the injunction order is granted upon affidavits "a copy of the affidavits likewise shall be served with the injunction order." It is our view that such a requirement is a mandatory one, and the failure to serve the affidavit with the temporary restraining order constituted a jurisdictional defect fatal to the subsequent issuance of the injunction pendente lite.
Section 9245, Revised Codes, provides for the issuance of injunction orders without notice to the party sought to be restrained. Granting that in certain instances where the delay of giving notice might cause irreparable injury this may be done, still we see no dispensing, even in such instance, with the statutory necessity of serving a copy of the affidavit with the order of restraint.
Here, the matter of issuing an injunction pendente lite was on notice and order to show cause, but the temporary restraining order effective during the interim between the return day of the hearing and until the subsequent order of the court was without notice. Sections 9244 and 9245 must be construed and applied together, as the requirements of each form an integral part of the entire procedure contemplated in the matter of obtaining injunctive relief.
The terms of the statute are clear and unmistakable in their import, section 9244, supra, specifying particularly that a copy of the affidavit be served with the injunction order. A temporary restraining order being a species of injunction (Labbitt v.Bunston,
From our study of the affidavit lodged with the district court in support of the request for a temporary restraining order and injunction pendente lite, we think there were sufficient grounds positively set forth to have moved the court's discretion in the issuance of the temporary restraining order in the first instance without notice to relator, — that is, conceivably irreparable *245
injury might have resulted from the delay in giving notice. The[2] fact that the court permitted an amendment of the affidavit to make all statements therein positive rather than on information and belief we consider immaterial. The amendment related back to the time the court's discretion was moved by the affidavit originally before it. The amendment was filed May 31, as was the motion to dissolve the injunction proceedings. Such circumstances alone provided no ground for dismissal of the proceedings, but rather, as stated in Claussen v. Chapin,
However, on the return day set for determination of the question whether an injunction pendente lite should issue, the court was confronted with a record showing on its face that no affidavit had been served on relator with the temporary restraining order or at any time thereafter prior to the date of the hearing. Relator took the position that the service was invalid, thereby leaving the court without jurisdiction to proceed further. He made no appearance at the hearing but subsequently, as hereinbefore mentioned, submitted his motion for dismissal of the proceedings and dissolution of the temporary restraining order. From what we have said, his motion should have been granted. (Compare Green v. Superior Court of Los AngelesCounty,
Section 9245, Revised Codes, provides in part that "the court or judge may enjoin the defendant, until the hearing anddecision of the application, by an order which is called a restraining *246 order." The hearing and decision having occurred, the temporary restraining order became functus officio.
The respondents do not contend before this court that the restraining order is still in effect, their position being that the injunction pendente lite has supplanted the restraining order, and that the relator is restrained, not by virtue of the temporary restraining order, but by virtue of the injunctionpendente lite.
In their brief respondents state: "No restraining order now in existence and the application to vacate the restraining order now a moot question." In support of this statement respondents citeWetzstein v. Boston Montana C.C. S.M. Co.,
Many courts in other jurisdictions have passed upon the question of the termination of the temporary restraining order in a situation like this. Typical of these cases is Robinson v.Theis, (Tex.Civ.App.)
This court in State ex rel. Cook v. District Court, 105[3, 4] Mont. 72,
It follows that respondents should proceed no further in the premises, other than to order the dissolution of the restraining order and the order of injunction pendente lite. It is so ordered and that the writ applied for herewith issue.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES MORRIS and ARNOLD concur.
Dissenting Opinion
I concur in the foregoing opinion so far as it holds that the injunction order pendente lite is invalid. I do not agree with the conclusion that the temporary restraining order should be ordered dissolved, nor do I agree that it has spent its force under the facts here involved. My associates hold, and with that I agree, that the temporary restraining order was properly issued. Why then should it be dissolved?
The only ground set forth in the motion of relator is that it was issued in excess of the jurisdiction of the court. This ground, my associates hold, and I think properly, is not well taken. The only purpose of serving the affidavit with the order to show cause is to confer jurisdiction upon the court to hold a hearing and make a decision whether an injunction pendente lite should be issued. Since that was not done here, the orderpendente lite was void.
In my opinion, the mere making of the order pendente lite
without jurisdiction has no effect upon the temporary restraining order made within jurisdiction. The purpose of the temporary restraining order is to preserve the status quo until a hearing can be had and a decision made as to whether an injunctionpendente lite should be issued. The purpose of the statute is frustrated by the holding of my associates. The order pendentelite in question here was void. "Where there is no jurisdiction, there can be no legal right to hear and determine." (State ex *249 rel. Snell v. Third Judicial District,
Our statute gives vitality to a restraining order "until the hearing and decision of the application." (Sec. 9245, Rev. Codes.) There has been no valid hearing as yet, and hence the restraining order is still in effect. While a temporary restraining order may not be used to serve the purpose of a permanent injunction (State ex rel. Cook v. District Court,
My associates rely upon the expressed intention of the court in the order pendente lite to vacate the temporary restraining order. That, however, was done under the belief by the court that it was making a valid order pendente lite operating as a restraint, so that the temporary restraining order was no longer needed as a restraint. When the order pendente lite falls for want of jurisdiction, for want of a hearing and decision, then the temporary restraining order must be resorted to to gauge the rights of the parties. The situation is akin to that when a valid statute is attempted to be superseded by an unconstitutional one. In such case the first statute is unaffected by the unconstitutional attempt to change it. (Compare Norton v.Shelby County,
The Texas cases relied upon by my associates, holding that the restraining order loses vitality upon the day it is set for hearing, cannot apply under our statute (sec. 9245), which authorizes the restraining order until "hearing and decision."
I see no justification for ordering dissolution of the temporary restraining order or for holding that it was in any way affected by the order pendente lite, which was void for want of jurisdiction. What the court should do now is to fix a different time *250 for the hearing and require service of the affidavits with the order fixing the time, and allow the temporary restraining order to stand until the matter is properly heard and a valid decision is rendered on the issue of whether an injunction pendente lite should issue.