Piatt v. Piatt

2 Disney (Ohio) 408

• Court: Ohio Superior Court, Cincinnati
• Decided: November 15, 1858
• Docket: No. 6,989
• Status: Published

Opinion

Gholson, J.

It is claimed in support of the demurrer, that when relief in equity depends upon a legal right,' the court will not interfere until the right is ascertained, and that this should be done by a proceeding at law. This is a correct rule when the court is required to make a final decree settling the right in dispute. 2 Phill. 44, 49, 154, 293 and 333. Or, at least, the court will not interpose unless the legal right is very clear. 2 Phill. 154. But in the meantime there may be a question whether an injunction will not be granted, or some order -made to secure the plaintiff from damage until the legal right is decided. 2 Phill. 44, 50. “It is certaiu that the court will, in many cases, interfere and preserve property in statu quo, during the pendency of a suit, in which the rights to it are to be decided,, and that without expressing, and often without having the means of forming any opinion as to such rights.” 2 Phill. 602; 16 Ves. 267; 3 V. & B. 168; Dow, 440. “ It is true that the court will not so interfere, if it thinks there is no real question between the parties; but seeing that there is a substantial question to be decided, it will preserve .the property until such question can be regularly disposed of. In order to support an injunction for such purpose, it is not necessary for the court to decide upon the merits in favor of the plaintiff.” 2 Phill. 603.

There being cases in which relief may be properly’ granted, is such a case made out by the statements in the petition ? The answer to this question must depend on the nature of the circumstances as showing such injury to the plaintiff as forms a ground for the interference in equity. If the plaintiff may suffer, during the pendency of the litigation, an injury in its nature irreparable, this, undoubtedly, will be sufficient. 16 Mees. & Welsb. 581. There are some injuries which have been specially pointed out as being of this description, others depend upon the meaning of the general definition or description, “irreparable injury.” It has been said that irreparable injury is “that which if not prevented by inj unction, can not afterward be compensated by any decree which the court can pronounce in the result of the cause.” 16 Mees. & Welsb. 575, 581.

The injury claimed in this case to authorize the interference of the court is waste, the great danger of which to the real estate is alleged in the bill, but the particulars are not stated. Now it may be inferred that the waste threatened is permissive — the injury and destruction of tenements from the want of proper repair. That a case of this kind may exist, which, under its circumstances, may amount to irreparable injury, and justify the interference of the court, is clear to my mind. . Whether, under the general allegations in the petition, the plaintiff can make out such a case, is not now the question. The only question is, whether, on a demurrer, such general allegations are sufficient. We have so held under the code, leaving the party to a motion to make definite and certain. Even under practice, in chancery, it has been said that “ a very general term used in. pleading may enable a party to make a case which, if proved, would entitle him to relief.” 1 Craig & Phill. 98, Williams v. Earl of Jersey.

In accordance with these views the demurrer to the petition must be overruled.

Demurrer overruled.