Stoddart v. Vanlaningham

14 Kan. 18 | Kan. | 1874

The opinion of the court was delivered by

Valentine, J.:

statement of the case. On March 12th, 1872, an election was held in Neosho county for the relocation of the county-seat of that county. No place received a majority of all the votes cast, but the towns of Erie and Osage Mission were the two towns which received the greatest number of votes. On March 26th a second election was held for the relocation of said county-seat, at which election the towns of Erie and Osage Mission were voted for, The returns of the election were duly canvassed by the board of county commissioners, and it was determined by them that 'the town of Erie had received a majority of all the votes cast at said election, and that said town of Erie had thereby become the county-seat of said county. Thomas PI. Butler, a friend of the town of Osage Mission, felt aggrieved at the decision of the board of county commissioners, and commenced an action in the district court of said county, under ch. 79 of the laws of 1871, to contest said election. He commenced his action under § 5 of said act, against Geo. W. McMillen, county clerk of said county, to perpetually enjoin said county clerk from moving his office from the town of Osage Mission to the town of Erie. The action was prosecuted and defended in good faith, and finally determined by the district court in favor of the defendant and in favor of the town of Erie. (The case was afterward brought to this court, -and is reported in 13 Kas., 385.) The case was determined at the July Term of the district court in 1873. Immediately after said case was determined the present case was commenced. It seems that the plaintiff in this action, A. B. Stoddart, who is also a friend of the town of Osage Mission, also felt aggrieved at the decision of the board of county commissioners in declaring the town of Erie to have received a majority of all the votes cast at said election, and in declaring said town of Erie to be the county-seat. He therefore also commenced an action under said § 5 of the act of 1871 for the purpose of contesting said election. He made E. J. Vanlaningham, register of deeds, the defendant, and prayed for a perpetual injunction to restrain said defendant from moving his said office from the town of Osage Mission to the town of Erie. He .also asked for a temporary injunction to restrain said Vanlaningham from moving his said office until said action could be finally heard and determined. The court below required notice to be given to the defendant of the application for said temporary injunction. Notice was so given, and the application was heard by the judge of the district court at chambers on affidavits and other evidence on August 5th and 6th, 1873. At the time of hearing, the defendant had not yet answered the petition of the plaintiff. The judge refused to grant said temporary injunction, and the plaintiff now brings the question here for review.

1. injunction:, evidence on motion for. 2. county-seat questions have another action, Did the judge of the court below err? We think not. On an application for a temporary injunction, when notice of the same has been required to be given to the defendant, and notice has been so given, the de- , ° ' fendant may, on the hearing of the application, and even before answer filed, introduce any legal evidence that -would tend to show that the injunction should not be granted. He is not confined to evidence that merely tends to disprove the allegations of the plaintiff’s petition. Indeed, it has been held that a party applying for- a temporary injunction has no right to withhold or omit facts important for the court to know in granting the injunction. (Joyce on Injunctions, 1263 to 1266, 1306; High on Injunctions, §§ 990, 991.) It seems everywhere to be held that the granting or refusing of a temporary or preliminary injunction rests largely in the sound judicial discretion of the court or judge to whom the application is made. (Hilliard on Injunctions, page 15, § 17.) And it would seem in England, that “in granting an injunction the court is bound to consider the amount of injury which may be thereby inflicted on strangers to the suit, and third parties.” (1 Joyce on Injunctions, 497.) In the case of the N. Y. Printing and Dyeing Establishment v. Fitch, 1 Paige Ch., 98, Chancellor Walworth uses the following language: “There are many cases in which the complainant may be entitled to a perpetual injunction on the hearing, when it would be manifestly improper to grant an injunction in limine. The final injunction is in many cases matter of strict right, and granted as a necessary consequence of-the decree made in the cause. On the contrary, the preliminary injunction before answer is a matter resting altogether in the discretion of the court, and ought not to be. granted unless the injury is pressing, and the delay dangerous.” And injunctions are often allowed to prevent a multiplicity of suits. In this case it would seem that the plaintiff is in favor of a multiplicity of suits, and wants the court to assist him therein by allowing a temporary injunction. JNow, arter -¿he main and substantial question m tins case, the question whether Osage Mission or Erie is the county-seat of Neosho county, has been twice decided against the plaintiff, once by the canvassing board and once by the district court after a full and fair trial in an action litigated in good faith by both sides, we think it would be at least an abuse of judicial discretion for the court or judge to allow a temporary injunction to restrain a county officer from moving his office to the place so declared to be the county-seat, merely for the purpose of keeping the office at the old county-seat while the plaintiff should again litigate the question as to which place is the county-seat. The minor issues in the case of Butler v. McMillen were in some respects different from the minor issues in the present case, but still the main issue was the same in both cases.

The order of the judge of the court below, refusing to grant said temporary injunction, is affirmed.'

All the Justices concurring.