Anderson v. Englehart

108 P. 977, 18 Wyo. 409, 1910 Wyo. LEXIS 14

Opinion

Potter, Chiee Justice.

This is a proceeding in error for the review of an order denying a motion to dissolve a temporary injunction. The action was brought to recover judgment upon certain notes, and to foreclose a real estate mortgage given to secure said notes. An injunction was also prayed for to restrain the threatened removal from the mortgaged premises of certain described articles alleged to constitute part of the realty and to be permanent fixtures thereto, and necessary for the conduct of the business theretofore carried on upon said premises. The injunction complained of was issued at the commencement of the action; and, before answer or any other pleading on his part, the defendant filed a motion to dissolve the temporary injunction. The motion was. heard upon the petition, and affidavits filed by the respective parties, whereupon it was ordered that the motion be denied, and that the injunction be continued until the final hearing of the cause.

The motion to dissolve was made on the following grounds: (1) That the defendant was not notified of the application for the injunction. (2) That the application was not supported by proper affidavits. (3) That the allegations of the petition do not entitle the plaintiff to an injunction. (4) That upon the face of the petition the property in question is personal property and not mentioned or referred to in the mortgage. (5) That from the affidavits filed in support of the motion it appears that the property had in no way been attached to or become a part of the realty covered by the mortgage.

1. Section 4041, Revised Statutes 1899', provides: “If,, in the opinion of the court or judge, the defendant or any party to the suit should be heard before granting the injunction, a reasonable notice may be ’required to. be given to the party, of the time, place and purpose of the application ; and such party may, in the meantime, be restrained.” (Wyo. Comp. Stat. 1910, Sec. 4901.) Section 4044 of the 1899 revision provides that when the injunction is allowed at the commencement of the action, the clerk shall indorse upon the summons “injunction allowed,” and that it shall not then be necessary to issue the order of injunction, and further, that it shall not be necessary to issue the order when notice of the application therefor has been given to the party enjoined. (Comp. Stat. 1910, Sec. 4904.) Section 4045 provides that when an injunction is allowed during the litigation, and without notice of the application therefor, the injunction shall be issued, and the sheriff shall forthwith serve the same upon each party enjoined, etc. (Comp. Stat. 1910, Sec. 4905.) Thus the right of the court or judge to allow the injunction before answer without notice of the application seems to be clearly implied. In special cases, such as suits brought to enjoin the use or diversion of water from streams upon which the rights to the use of the water thereof have been adjudicated, the statute prohibits the granting of a restraining order before notice and hearing. (Laws 1907, Ch. 86, Sec. 21; Comp. Stat. 1910, Sec. 4900.) But generally the matter is governed by the statutory provisions above referred to. It is not a valid objection, therefore, that the injunction, was allowed without notice to the defendant.

2. The statute provides that the injunction may be granted at the time of commencing the action, or at any time afterward, before judgment, upon its appearing satisfactorily to the court, judge or commissioner, by affidavit of the plaintiff, or his agent, that the plaintiff- is entitled thereto. (Rev. Stat. 1899, Sec. 4040; Comp. Stat. 1910, Sec. 4849.) When the petition is sworn to positively it is itself an affidavit, and if the necessary facts are set forth in the petition so sworn to the petition will’be sufficient without a separate or independent supporting affidavit to authorize the issuance of the temporary injunction at the commencement of tlje action. (22 Cyc. 941-942; Smith v. Stearns Rancho Co., (Cal.) 61 Pac. 662; Howard v. Eddy, (Kan.) 43 Pac. 1133.) The general rule in such case is that the petition must be sufficient not merely as stating a cause of action, but also as an affidavit, that is to say the facts must be alleged to show a right to the temporary injunction with the same fullness and particularity as would be required in an affidavit. In Howard v. Eddy, supra, the rule is stated as follows: “If the petition sets forth the necessary facts, and is properly sworn to, an order may be allowed thereon. When used for that purpose, it must state facts with the detail and particularity that is required in an affidavit or deposition. ‘When a verified petition is used as an affidavit, its allegations must be construed as. those of an affidavit, and must be such statements of fact as would be proper in the oral testimony of a witness. Allegations which are simply conclusions of law, whether sufficient, or not, as matter of pleading, are incompetent as. testimony’.”

The petition in the case at bar seems to be sufficient to show the fact that the plaintiff holds a mortgage upon the premises described, and that the right has accrued to foreclose the same, at least it is not here contended that the petition is insufficient in that respect. It is, however, contended that the allegations with reference to the particular property in controversy are insufficient to show a right to have the removal thereof enjoined. The only substantial objection to the petition, when considered as an affidavit, is its failure to specifically state the manner in which the alleged fixtures had been annexed to, and had become a part of the realty, and to definitely show that their removal would impair the mortgage security. Had the motion to dissolve been made alone upon the insufficiency of the petition as an affidavit to authorize the allowance of the injunction-, and had there been no other affidavits considered upon the hearing, it is at least doubtful whether the petition could be considered sufficient, standing alone to. justify the allowance or the continuance of the restraining order. But the motion to dissolve was filed on the day following the commencement of the action and the hearing was had within ten days, all before answer or other plead ing on the part of. the defendant, and it was then ordered, upon a consideration of the affidavits filed by both plaintiff and defendant, not only that the motion to dissolve be denied, but that the injunction be continued until the final hearing of the cause. The affidavits filed by the plaintiff as well as those filed by defendant stated with some particularity the manner in which the articles of property in question were connected with the premises and used; and those filed by the plaintiff were to the effect that the removal of such property from the building erected on the premises would render it unsuited to the purposes for which it was built and had continuously been used, and by reason of its location and other circumstances would greatly depreciate the value of the building and premises and render the same unprofitable. The value of the property either with or without the alleged fixtures is not stated in any affidavit filed by either of the parties, but the defendant did not attempt to show that the removal of the alleged fixtures would not impair the plaintiff’s security. On the contrary it is stated in the affidavit of the defendant that when he-ascertained that he would be unable to pay the mortgage indebtedness he offered to deed the premises to the plaintiff in satisfaction of the debt, which offer the plaintiff refused to accept. It appears further from the affidavits that the property in question had been fastened to the floor and wall of the building by nails, screws and iron fastenings, and was in and connected with the building at the time that the mortgage was given, and indeed had been there during all the period that the building had been used. The hearing having been had so shortly after the commencement of the action and the original allowance of the injunction, and the plaintiff having at that time made a further showing by filing additional affidavits, we do not deem it very material whether the petition was or was not sufficient as an affidavit to support the original allowance. In view of the situation the court would have been justified, we think, in disregarding the objection to the suffi ciency of the prooff on the face of the petition to authorize the temporary injunction, and in determining whether it should be continued upon the evidence presented on the hearing of the motion to dissolve.

3. The sufficiency of the petition as a pleading to entitle the plaintiff to the injunction' is also challenged by the motion, and it is contended that it is insufficient for the reason that it merely alleges generally that the articles in question, which are described as a bar, back-bar and oak partition, are a part of the realty and permanent fixtures thereto, without stating the necessary facts to show that they had become a part of the realty; that it fails to show that the removal of the alleged fixtures will render the security inadequate; and that it does not appear by the petition that they are described in or covered by the mortgage.

The petition alleges that the defendant threatens to detach and move from the premises described in the mortgage the articles in,..question, which, it is alleged, “are a part of said realty and constitute permanent fixtures thereto and necessary for the conduct of the business carried on heretofore on and in said premises.” That allegation is not, as contended, the statement of a mere legal conclusion.- On the contrary, it is the statement of an ultimate fact. Whether a chattel is a fixture or has in any case become a part of the realty is a mixed question of law and fact, and is to be determined from a consideration of all the facts and circumstances attending its annexation and use. (19 Cyc. 1038; Ewell on Fixtures, 2nd Ed. p. 34.) It is said in Opalika Bank v. Kiser, 119 Ala. 194, that “courts can not know otherwise than through the medium of evidence the particular facts necessary to convert this ’ character of property, primarily personal, into fixtures, or parts of the realty in connection with which it may be used.” In most cases it would be difficult-to set forth in a pleading all the circumstances to show that a chattel has been annexed to real estate in such a manner and under such conditions as to constitute the same a fixture and a part of the realty, without a recital of facts purely evidential in character. With reference to such a matter it must be held usually sufficient to allege the ultimate fact that it is a fixture and a part of the realty, leaving the facts upon which the allegation is based to be brought out by the proof.

The general rule as to the right of a mortgagee to maintain an action to restrain the removal of fixtures is that he may maintain such an action when the removal would have the effect of impairing the security. Where the mortgage is considered a mere security, it is usually held under the general rule aforesaid that to entitle the mortgagee to an injunction to restrain such removal, it must appear that the property would be diminished in value by the threatened removal to such an extent as to render the mortgage security insufficient or inadequate. This does not mean that the injunction would not be granted in case the diminished value of the property would equal the amount of the debt, but a sufficient margin should be allowed to render the mortgage a fair security under conditions controlling in a particular locality the loaning of money upon such security, and allowing for depreciation in the value of the property from other causes. In King v. Smith, 2 Hare, 239, it is said: “The mortgagee is entitled to be protected from acts of waste which would so far impair the value of the property as to render the security of doubtful sufficiency.. He is entitled to have the mortgaged property preserved as sufficient security for the payment of his debt, and it is not enough that its value may be barely equal to the debt. That would not ordinarily be deemed sufficient as security to one whose purpose is to secure payment, and not to become a purchaser of the property at its market value. And not only must it be considered that the mortgage is held to secure payment of the debt, and not for the purpose of converting the mortgagee into a purchaser, but that if the debt is not yet mature it is to be considered whether, during the time that may elapse before maturity, the present value of-the property may not become depreciated from causes not now known.” (Moriarity v. Ashworth, (Minn.) 44 N. W. 531; Moses v. Johnson, 88 Ala. 517; Fairbank v. Cudworth, 33 Wis. 358; Vanderslice v. Knapp, 20 Kan. 647; Miller v. Waddingham, (Cal.) 27 Pac. 750; Ewell on Fixtures, 2nd Ed., 609, 610; 1 High on Inj., 3rd Ed., Sec. 481; 19 Cyc. 1072.)

The petition alleges that the removal of the alleged fixtures “will' work injury to said real property, and that said injury will be irreparable and that no adequate remedy at law exists whereby the plaintiff may protect himself against the said detaching, wasting, damaging and removing of said parts of said real estate, and against the consequent damage and loss to said real property and plaintiff’s security.” The allegation is objectionable for not directly stating that the security would be so impaired as to be rendered insufficient, but as the hearing was had with reference to allowing a temporary injunction, before any pleading filed by the defendant, and upon affidavits filed by the contending parties, and as the suggested defect in the petition may be remedied by amendment, we do not think that the injunction should be vacated on this ground without allowing the plaintiff an opportunity' to amend. When the petition is considered in connection with the affidavits the defect is not so material as to call for a reversal of the order.

It is alleged in the petition that the mortgaged property is described in the mortgage as follows: Lot twenty-two (22) in block six (6) in the Town of Grand Encampment, Carbon County, Wyoming, according to the recorded plat thereof, together with all the appurtenances, privileges and hereditaments thereunto in any wise appertaining or belonging. That description is sufficient to cover property like that here in controversy when it has been so annexed to the realty as to become a part of it.

4. Upon an appeal from an order granting or refusing an injunction pendente lita the rule is that the appellate tribunal will not interfere with or control the action of the court below unless it has been guilty of a clear abuse of discretion; and by abuse of discretion within the meaning of the rule is meant an error of law committed by the Court. (2 High on Inj., Sec. 1696.) As said in Collins v. Stanley, 15 Wyo. 282, 295, the granting or dissolution of a preliminary injunction is a matter resting largely in the discretion of the court to which the application or motion is addressed. “This discretion should be exercised so as to prevent injury, having in mind the situation of the parties. The rights of the defendants are protected by the bond, while there is no such protection afforded plaintiff if the injunction is dissolved, and it should turn out that his action is well founded.”

With reference to the evidence produced at the hearing we think it only necessary to say that it appears to us to be sufficient to justify the order denying the motion to dissolve and continuing the injunction until the final hearing of the cause. The order complained of will be affirmed.

Beard, J., concurs. Scott, J., did not sit.