Treat v. Wilson

Court of Appeals of Kansas

Treat v. Wilson

46 P. 322, 4 Kan. App. 586, 1896 Kan. App. LEXIS 246

CourtCourt of Appeals of Kansas

DecidedOctober 9, 1896

DocketNo. 65

StatusPublished

Cited by4 cases

This text of 46 P. 322 (Treat v. Wilson) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Treat v. Wilson, 46 P. 322, 4 Kan. App. 586, 1896 Kan. App. LEXIS 246 (kanctapp 1896).

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Opinion

The opinion of the court was delivered by

Garver, J. :

The plaintiff in error complains of the ruling of the judge of the district court of Ellis county in making an order dissolving a temporary injunction which had been previously granted without notice by the probate judge, of said county to stay the execution of a judgment theretofore rendered by said court, in an action in which Hill P. Wilson was plaintiff and M. J. R. Treat was defendant, until said defendant, Treat, against whom the judgment was given, could prepare his case and file a petition in error in the supreme court for a review thereof. We think no error was committed in dissolving the injunction. The judgment sought to be enjoined was, so far as disclosed, regularly obtained, and in all respects was valid and binding. No stay having been asked for [587]*587or allowed when the judgment was rendered, the plaintiff had a right to have an execution issue forthwith.

If the defendant therein desired to take the case to the supreme court, the district court would, proper application having been made, doubtless have given such reasonable stay of proceedings as might have been necessary. And, even after judgment, the court still had control of any process that might be issued, and could have made any order that was proper and necessary fully to protect the legal rights of the unsuccessful party. It is the duty of courts to see that no injustice is done by the use or abuse of its process, and, to this end, the execution thereof may be stayed at any time by the court out of which it issued. (Church v. Goodin, 22 Kan. 527; Dunmeyer v. K. P. Rly. Co., 29 id. 185 ; Bogle v. Bloom, 36 id. 512.) Injunction is an extraordinary equitable remedy, not to be resorted to when there is an adequate remedy at law. An adequate legal remedy existed in this case.

The judgment will-be affirmed.

Clark, J., concurring. Gilkeson, P. J., having been of counsel, did not sit in the case.

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The opinion of the court was delivered by

Garver, J. :

The plaintiff in error complains of the ruling of the judge of the district court of Ellis county in making an order dissolving a temporary injunction which had been previously granted without notice by the probate judge, of said county to stay the execution of a judgment theretofore rendered by said court, in an action in which Hill P. Wilson was plaintiff and M. J. R. Treat was defendant, until said defendant, Treat, against whom the judgment was given, could prepare his case and file a petition in error in the supreme court for a review thereof. We think no error was committed in dissolving the injunction. The judgment sought to be enjoined was, so far as disclosed, regularly obtained, and in all respects was valid and binding. No stay having been asked for [587]*587or allowed when the judgment was rendered, the plaintiff had a right to have an execution issue forthwith.

If the defendant therein desired to take the case to the supreme court, the district court would, proper application having been made, doubtless have given such reasonable stay of proceedings as might have been necessary. And, even after judgment, the court still had control of any process that might be issued, and could have made any order that was proper and necessary fully to protect the legal rights of the unsuccessful party. It is the duty of courts to see that no injustice is done by the use or abuse of its process, and, to this end, the execution thereof may be stayed at any time by the court out of which it issued. (Church v. Goodin, 22 Kan. 527; Dunmeyer v. K. P. Rly. Co., 29 id. 185 ; Bogle v. Bloom, 36 id. 512.) Injunction is an extraordinary equitable remedy, not to be resorted to when there is an adequate remedy at law. An adequate legal remedy existed in this case.

The judgment will-be affirmed.

Clark, J., concurring. Gilkeson, P. J., having been of counsel, did not sit in the case.

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Bluebook (online)

46 P. 322, 4 Kan. App. 586, 1896 Kan. App. LEXIS 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/treat-v-wilson-kanctapp-1896.

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