Cochrane, J.
(after stating the facts). The appeal in this case is from an interlocutory order in no way affecting its merits upon the issue joined, which has not yet been tried. Plaintiff, in his complaint, bases his cause of action upon his right to possession of the land in question. The injunctional order was procured on showing by affidavit in the action, and, as a provisional remedy only, contains language against plaintiff seldom, if ever, used, except in writs of ejectment, and after full hearing upon the merits, where the right of cross-examination has been secured. Without passing upon the right of plaintiff to the injunctional order granted him in the first instance, it may be noted that there is an averment in the complaint of threatened waste, and of the insolvency -of the defendant, from which the inference is deducible that the remedy at law would not, in the event of recovery, fully protect plaintiff’s rights, and in the prayer for relief an injunction- is expressly asked for. It will also be noted that the answer and counterclaim of defendant contain no averments whatever which, if proven, could, under any rule so far declared by the courts, entitle defendant to the equitable protection of an injunction; and. there is no prayer for such a relief in defendant’s answer. The provisional remedy, by injunction in this state is of statutory origin, and is granted a plaintiff when necessary to protect his rights pending final determination of the case upon the merits. Section 5344, Rev. Codes. And this only when the complaint contains averments which, if proven, would entitle plaintiff to the relief demanded, and its issuance is made to appear as necessary to protect plaintiff’s rights during the litigation. McHenry v. Jewett, 90 N. Y. 58; Hartt v. Harvey, 32 Barb. 55, 68; New York, etc., Ry. Co. v. Ry. Co., 11 Abb. N. C. 386; Bagaley v. Vanderbilt, 16 Abb. N. C. 359; Close v. Flesher (Com. Pl.) 28 N. Y. Supp. 737; Kerr v. Dildine, 6 N. Y. St. Rep. 163; Roosevelt v. Edson, 51 N. Y. Super. Ct. 287 ;Catholicon Hot Springs Co. v. Ferguson, 7 S. D. 508, 64 N. W. Rep. 539. The complaint must pray for injunctional relief. Section 5266, Rev. Codes; Hulce v. Thompson, 8 How. Prac. 475; Ward v. Dewey, 7 How. Prac. 17; Olssen v. Smith, 7 How. Prac. 481; Hovey v. McCrea, 4 How. Prac. 31; Locke v. Davison, 111 Ill. 19. Some cases go to the length of declaring that, if the cause for temporary injunction exists at the time of the commencement of the action, the complaint, in its prayer for relief, must contain a request for this relief pendente lite. Walker v. Devereaux, 4 Paige, 229; Vincent v. King, 13 How. Prac. 239; 10 Enc. Pl. & Pr. 962, and note. The reason for the rule is found in this : that the writ of injunction has here been abolished, and the injunctional order, as a provisional remedy, substituted therefor. Section 5343; Rev. Codes. The order can be awarded only in the cases and in the manner sped[567]*567fically prescribed, and is impliedly forbidden in any others. Jackson v. Bunnell, 113 N. Y. 216, 21 N. E. Rep. 79; Fellows v. Heermans, 13 Abb. Prac. (N. S.) 9; Erie Ry. Co. v. Ramsey, 45 N. Y. 637. “The injunctional order is temporary in its character. It assumes a pending litigation, in which all the questions are to be settled by a judgment, and operates only until that judgment is rendered. If by that a permanent injunction is granted, the temporary one is, of course,' ended; and equally so if a permanent injunction is in the end denied.” Jackson v. Bunnell, 113 N. Y. 216, 21 N. E. Rep. 79. It follows from what we have said that the injunctional order here, although containing language proper, and only properly used, in a permanent injunction, could have been intended, and, at best, could operate, only as a temporary injunction. It also follows that defendant was not entitled to the protection of a temporary injunction because the averments of his counterclaim are insufficient to secure such reliei, and the prayer for relief appended thereto is for money damages only. The defects in the pleading cannot be supplied by affidavits used to support the motion for a temporary injunction. Stull v. Westfall, 25 Hun 1; Close v. Flesher (Com, Pl.) 28 N. Y. Supp. 737.
The order appealed from was improperly issued for the further reason that the statute gives the right to relief by temporary injunction to a plaintiff in the litigation, only, and not to the defendant. That the plaintiff is entitled to the relief demanded must appear by the complaint, and a part of the relief demanded must consist in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to the plaintiff. Subdivision 1, § 5344, Rev. Codes. “When, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done in violation of the plaintiff’s rights respecting the subject of the action and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.” “And, when during the pend-ency of an action it shall appear by affidavit that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction may be granted to restrain such removal or disposition.” Subdivisions 2, 3, § 5344, Rev. Codes. No right is here given a defendant, as such, even under a counterclaim, to restrain any of the enumerated threatened injuries, if done or threatened by plaintiff. But to secure the redress, a party must begin an independent action, making his adversary a defendant. California Pacific Ry. Co. v. C. P. Ry. Co., 47 Cal. 549; 1 Code Civ. Proc. N. Y. § 603, note “b.”
Other objections are urged against this order. But one other will be noticed: The closing paragraph of the order from which this appeal was taken is clearly unwarranted, viz.: “It is further ordered that you, Frank N. Forman, the plaintiff, and your agents, servants, and employes, be, and you are hereby, perpetually enjoined and restrained from in any manner interfering with, or hindering or obstructing, the use and occupation of said lands, and every part thereof, [568]*568by the defendant Simon P. Healey. And it is further ordered that you, immediately ofter the service of this order upon you, vacate said premises, and surrender and yield up possession thereof, and every part thereof, to said defendant Simon P. Healey.” Plaintiff was in possession of the land, and had his family, house, and home thereon. Whether rightfully or wrongfully there, it was the purpose of the litigation to have determined. The court could not determine this question, and eject plaintiff from his home, on the application for a temporary injunction secured on affidavit. His contest before the Interior Department was pending upon petition for rehearing, and had not been finally determined. A disobedience of this part of the order could not be punished as a contempt, because the making thereof was entirely beyond,the court’s jurisdiction. Messler v. Simonson, 10 Mich. 335. Possession of land is not thus to be disturbed by means of a temporary injunction, nor can the rights of the parties be prejudiced in advance of the trial of the main issue. Dickson v. Dows, 11 N. D. 404, 92 N. W. Rep. 797; Arnold v.
Free access — add to your briefcase to read the full text and ask questions with AI
Cochrane, J.
(after stating the facts). The appeal in this case is from an interlocutory order in no way affecting its merits upon the issue joined, which has not yet been tried. Plaintiff, in his complaint, bases his cause of action upon his right to possession of the land in question. The injunctional order was procured on showing by affidavit in the action, and, as a provisional remedy only, contains language against plaintiff seldom, if ever, used, except in writs of ejectment, and after full hearing upon the merits, where the right of cross-examination has been secured. Without passing upon the right of plaintiff to the injunctional order granted him in the first instance, it may be noted that there is an averment in the complaint of threatened waste, and of the insolvency -of the defendant, from which the inference is deducible that the remedy at law would not, in the event of recovery, fully protect plaintiff’s rights, and in the prayer for relief an injunction- is expressly asked for. It will also be noted that the answer and counterclaim of defendant contain no averments whatever which, if proven, could, under any rule so far declared by the courts, entitle defendant to the equitable protection of an injunction; and. there is no prayer for such a relief in defendant’s answer. The provisional remedy, by injunction in this state is of statutory origin, and is granted a plaintiff when necessary to protect his rights pending final determination of the case upon the merits. Section 5344, Rev. Codes. And this only when the complaint contains averments which, if proven, would entitle plaintiff to the relief demanded, and its issuance is made to appear as necessary to protect plaintiff’s rights during the litigation. McHenry v. Jewett, 90 N. Y. 58; Hartt v. Harvey, 32 Barb. 55, 68; New York, etc., Ry. Co. v. Ry. Co., 11 Abb. N. C. 386; Bagaley v. Vanderbilt, 16 Abb. N. C. 359; Close v. Flesher (Com. Pl.) 28 N. Y. Supp. 737; Kerr v. Dildine, 6 N. Y. St. Rep. 163; Roosevelt v. Edson, 51 N. Y. Super. Ct. 287 ;Catholicon Hot Springs Co. v. Ferguson, 7 S. D. 508, 64 N. W. Rep. 539. The complaint must pray for injunctional relief. Section 5266, Rev. Codes; Hulce v. Thompson, 8 How. Prac. 475; Ward v. Dewey, 7 How. Prac. 17; Olssen v. Smith, 7 How. Prac. 481; Hovey v. McCrea, 4 How. Prac. 31; Locke v. Davison, 111 Ill. 19. Some cases go to the length of declaring that, if the cause for temporary injunction exists at the time of the commencement of the action, the complaint, in its prayer for relief, must contain a request for this relief pendente lite. Walker v. Devereaux, 4 Paige, 229; Vincent v. King, 13 How. Prac. 239; 10 Enc. Pl. & Pr. 962, and note. The reason for the rule is found in this : that the writ of injunction has here been abolished, and the injunctional order, as a provisional remedy, substituted therefor. Section 5343; Rev. Codes. The order can be awarded only in the cases and in the manner sped[567]*567fically prescribed, and is impliedly forbidden in any others. Jackson v. Bunnell, 113 N. Y. 216, 21 N. E. Rep. 79; Fellows v. Heermans, 13 Abb. Prac. (N. S.) 9; Erie Ry. Co. v. Ramsey, 45 N. Y. 637. “The injunctional order is temporary in its character. It assumes a pending litigation, in which all the questions are to be settled by a judgment, and operates only until that judgment is rendered. If by that a permanent injunction is granted, the temporary one is, of course,' ended; and equally so if a permanent injunction is in the end denied.” Jackson v. Bunnell, 113 N. Y. 216, 21 N. E. Rep. 79. It follows from what we have said that the injunctional order here, although containing language proper, and only properly used, in a permanent injunction, could have been intended, and, at best, could operate, only as a temporary injunction. It also follows that defendant was not entitled to the protection of a temporary injunction because the averments of his counterclaim are insufficient to secure such reliei, and the prayer for relief appended thereto is for money damages only. The defects in the pleading cannot be supplied by affidavits used to support the motion for a temporary injunction. Stull v. Westfall, 25 Hun 1; Close v. Flesher (Com, Pl.) 28 N. Y. Supp. 737.
The order appealed from was improperly issued for the further reason that the statute gives the right to relief by temporary injunction to a plaintiff in the litigation, only, and not to the defendant. That the plaintiff is entitled to the relief demanded must appear by the complaint, and a part of the relief demanded must consist in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to the plaintiff. Subdivision 1, § 5344, Rev. Codes. “When, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done in violation of the plaintiff’s rights respecting the subject of the action and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.” “And, when during the pend-ency of an action it shall appear by affidavit that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction may be granted to restrain such removal or disposition.” Subdivisions 2, 3, § 5344, Rev. Codes. No right is here given a defendant, as such, even under a counterclaim, to restrain any of the enumerated threatened injuries, if done or threatened by plaintiff. But to secure the redress, a party must begin an independent action, making his adversary a defendant. California Pacific Ry. Co. v. C. P. Ry. Co., 47 Cal. 549; 1 Code Civ. Proc. N. Y. § 603, note “b.”
Other objections are urged against this order. But one other will be noticed: The closing paragraph of the order from which this appeal was taken is clearly unwarranted, viz.: “It is further ordered that you, Frank N. Forman, the plaintiff, and your agents, servants, and employes, be, and you are hereby, perpetually enjoined and restrained from in any manner interfering with, or hindering or obstructing, the use and occupation of said lands, and every part thereof, [568]*568by the defendant Simon P. Healey. And it is further ordered that you, immediately ofter the service of this order upon you, vacate said premises, and surrender and yield up possession thereof, and every part thereof, to said defendant Simon P. Healey.” Plaintiff was in possession of the land, and had his family, house, and home thereon. Whether rightfully or wrongfully there, it was the purpose of the litigation to have determined. The court could not determine this question, and eject plaintiff from his home, on the application for a temporary injunction secured on affidavit. His contest before the Interior Department was pending upon petition for rehearing, and had not been finally determined. A disobedience of this part of the order could not be punished as a contempt, because the making thereof was entirely beyond,the court’s jurisdiction. Messler v. Simonson, 10 Mich. 335. Possession of land is not thus to be disturbed by means of a temporary injunction, nor can the rights of the parties be prejudiced in advance of the trial of the main issue. Dickson v. Dows, 11 N. D. 404, 92 N. W. Rep. 797; Arnold v. Bright, 41 Mich. 207; Hemingway v. Preston, Walk. Ch. 528; People v. Simonson, 10 Mich. 335; McCombs v. Merryhew, 40 Mich. 728; La Cassagne v. Chapuis, 12 Sup. Ct. 659, 36 L. Ed. 368. “The principle is at least as old as the Magna Charta that a man shall have a trial of his right before dispossession, and we cannot sanction any departure from it that shall leave every one to the mercy of a special afid summary proceeding, on which an inquiry into the facts must always be imperfect, and generally one-sided.” McCombs v. Merryhew, 40 Mich. 725. Upon this subject the Supreme Court of Nebraska, in Calvert v. State, 52 N. W. Rep. 692, said: “The statement of the case carries with it a full answer. The judge, in effect, has undertaken to dispose of the merits of the case without a hearing. A temporary injunction merely prevents action until a hearing can be had. If it goes further, and divests a party of his possession or rights in the property, it is simply void.” And in Farmers’ Ry. Co. v. Reno, 53 Pa. 224, Justice Strong, speaking for the court, used the following language: “The bill itself presents no such case as to justify the decree of the court on motion, even if all its averments were supported by affidavits. *■ * * It would certainly be a novelty for a court in which an ejectment was pending to issue a writ of estrepement to restrain any use by the defendant of the land in controversy, and still' greater would be the novelty if defendants were prohibited from interfering with the plaintiff’s enjoyment of the land while the suit was in .progress. Yet this is analogous to what was done in thjs case. The injunction must therefore be dissolved.” In Catholicon Hot Springs Co. v. Ferguson, 7 S. D. 508, 64 N. W. Rep. 539, the following language is used: “We are clearly of the opinion that the court had no authority to grant a preliminary mandatory injunction requiring defendants to surrender the possession of the premises to the plaintiff.”
Our conclusion is that the injunctional order from which this appeal was taken, excepting in so far as it vacates the order of May 21, 1901, was erroneous, and without authority of law to sustain it. The order [569]*569appealed from is reversed, excepting in so far as it vacates the injunctional order as to May 21st, and, as to that portion vacating the order of May 21st, it is affirmed. Appellant to recover costs of both courts.
(93 N. W. Rep. 866)
All the Judges concur.