132 P. 1148 | Wyo. | 1913
This is a proceeding in error for the review of an order denying a motion for injunction pendente lite. The action was brought to recover possession of real esate and damages for withholding the same, and the defendant applied by motion supported by affidavit for an injunction restraining the plaintiff from interfering with the defendant’s possession of the property during the pendency of the action. At the time the motion was filed and heard the pleadings in the cause consisted of an amended petition, an amended answer, and a reply. By the amended petition the plaintiff, Annie F. Richardson, alleged that she was the owner of and entitled to the immediate possession of the property, and that the defendant, Adelaide J. Weaver, had unlawfully kept her out of possession and excluded her from the rents, issues and profits of the premises since the 20th day of April, 1910. It was alleged in the amended answer “as a second defense” that on or about October 28, 1909, the plaintiff and defendant entered into an agreement as follows: “Said plaintiff agreed for the sum of $500 to sell said premises, for which this action is brought, to said defendant, and said defendant agreed to purchase said premises for said price. That thereupon said defendant delivered to Adda Ulen, who was the duly authorized agent of both plaintiff and defendant for the purpose of this sale, $20 in escrow as part purchase price of said premises. That by the terms of said agreement the balance of said purchase price amounting to the sum of $480 was to be paid when said plaintiff should furnish a clear title to said premises and execute and deliver a good and
The reply admitted that defendant entered into possession of the premises at the time mentioned in the second defense of the answer, and denied each and every other allegation contained in that defense. On December 30, 1911, the cause being then pending and undetermined upon the issues raised by the pleadings, the defendant filed her said motion, supported by her affidavit stating in addition to the fact that the defendant had been in continuous possession since about October 28, 1909, that she had been put in possession by the plaintiff under a contract made between the parties as set forth in the amended answer; that on or about November 25, 1911, the plaintiff wrongfully and unlawfully entered the premises with force, and by intimidation and threats excluded the defendant therefrom, and since said date has wrongfully continued to occupy the premises and to exclude the defendant therefrom; and that the plaintiff intends and threatens to continue her wrongful acts, and by force, intimidation and threats to exclude the defendant permanently from thé enjoyment of the premises; and since taking possession of the premises the plaintiff has threatened to remove the defendant’s personal property from the premises and unless restrained will remove and destroy defendant’s said property. Upon the presentation of said motion it was ordered that it be set down for hearing on January 4, 1912, and that until said hearing and the further order of the court, the plaintiff, her agents, servants, and all persons acting in aid of her, be restrained from removing or in any manner interfering with the personal property of the defendant on the premises in controversy, and that if any of such property shall have been removed by the plaintiff that she forthwith restore the same in the said buildings on the premises; said restraining order to become operative upon the defendant giving a bond in a sum stated in the order.
To reverse the order denying defendant’s said motion, a petition in error was filed in this court January 16, 1912, and upon the application of the defendant, after á hearing at which both parties were represented, an order was entered enjoining the defendant in error, plaintiff below, her agents and servants, and all persons acting in aid of' her, from trespassing upon or in any manner interfering with the possession of plaintiff in error in and to the premises aforesaid during the pendency of the proceeding in error in this court, upon the plaintiff in error giving an undertaking with sufficient sureties in a stated amount, “conditioned that the said Adelaide J. Weaver shall pay to the said Annie F. Richardson the damages she may sustain if it be finally decided that the injunction ought not to have been granted.” It appears that such undertaking was given and filed with the papers in the cause in this court.
' 1. Counsel for defendant in error contends, inter alia, that the order complained of is not reviewable, and that therefore this court is without jurisdiction in the matter and was also without jurisdiction to issue the restraining order pending the proceeding in error. But in Anderson v. Englehart, 18 Wyo. 196, 105 Pac. 571, Ann. Cas. 1912c, 894, upon a full consideration of the question, such an order was held to be reviewable. And therefore the order of this court granting the injunction during the pendency of the proceeding in error was authorized by that provision of the Consti
2. The granting or refusing of an injunction pendente lite is a matter resting largely in the discretion of the court, to be exercised so as to prevent injury, considering the situation of the parties. (Collins v. Stanley, 15 Wyo. 282, 88 Pac. 620, 123 Am. St. Rep. 1022.) And the Appellate Court will not interfere with or control the action of the court below in such case unless it has. been guilty of a clear abuse of discretion. By abuse of discretion within the meaning of that rule is meant an error of law committed by the court. (Anderson v. Englehart, 18 Wyo. 409, 108 Pac. 977.) In Joyce on Injunctions (Vol. 1, Sec. 118), it is said: “Sound discretion consists in an observance of the rules and considerations which have generally guided the courts in granting preliminary injunctions. In any given case such discretion is shown in the steady judgment with which the judge applies the general rules to the particular facts with which he has to deal. The granting of an injunction is matter of grace in no sense except that it rests in the sound discretion of the court, and that discretion is not an arbitrary one. If improperly exercised in any case, either in granting or refusing it, the error is one to be corrected on appeal. Such
The code provides that the injunction provided thereby may be the final judgment in an action, or may be allowed as a provisional remedy, and that when so allowed it shall be by order. (Comp. Stat., 1910, Sec. 4897.) It is provided in Section 4898 that when it appears by the petition that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission
If the facts alleged in the answer as to a contract for a sale of the premises to the defendant and the latter’s possession under that contract are true, then the plaintiff could not maintain her action for possession, and the defendant would be entitled to enforce specific performance of the contract. “Ejectment is not -maintainable by a vendor against his vendee in possession under an executory contract of sale who is not in default in the performance of his contract, or who has performed it and is in a position to demand a deed, or who seasonably and in good faith offers to comply with the terms of his purchase, and continues ready to comply with them. To a vendee in possession under such circumstances the contract will avail him as a defense to an action of ejectment, or as a cross-action in equity to enforce a trust against his vendor, or to obtain a specific enforcement of the contract.” (2 Warvelle on Vendors, Sec. 886.) And a vendee who is in peaceable possession under his contract is entitled to an injunction to protect his possession pending his action for specific performance. (1 High on Inj., 4th Ed., Sec. 356; Hadfield v. Bartlett, 66 Wis. 634, 29 N. W. 639; Doane v. Allen (Mich.), 138 N. W. 228.) In Hadfield v. Bartlett the court say: “Most clearly the defendant did a great wrong in intruding into the possession of said barn and premises after commencement of the suit for specific performance of the contract. The merits of that suit cannot be determined on this ap
We think it apparent that upon the answer in the nature of a counter-claim or cross-petition praying for specific performance, the defendant would be entitled to have her possession protected by injunction pending the action, the same as a plaintiff in her situation who brings an action for specific performance. (Johnson v. Hall, 83 Ga. 281, 9 S. E. 783; Horton v. White, 84 N. C. 297.) In the case last cited, the plaintiff brought an action for the recovery of land claiming to be the owner thereof. The answer denied plaintiff’s allegations of title, and averred title in some of' the defendants, and that the others were tenants under them. While the action was pending the plaintiff, through an agent, entered into and took possession of an unoccupied house on the premises in controversy, and resisted the reoccupation thereof by the defendants. Thereupon the defendants applied for and obtained a temporary restraining order against further interference by the plaintiff until the hearing of the case upon its merits. On appeal the granting of the restraining order was sustained.
Upon the pleadings and the evidence taken at the hearing of the motion a very proper case was presented for an injunction, and we are unable to see any substantial reason for a denial thereof, or to say that the discretion of the court was properly exercised in refusing it. The plaintiff would have been protected by bond, and a refusal to protect the alleged right of the defendant until the matter in dispute could be determined in the pending action would seem to recognize, a right in the plaintiff to retake by force the property in controversy, and to continue to enjoy as the result of that act what rightfully belonged to another, if the allegations of the defendant’s answer are true. It was