Craver v. Stapp

Interlocutory Injunction — Dissolution — Appeal — Evidence— Sufficiency. Evidence on which a temporary injunction is dissolved will be held sufficient to sustain the order of dissolution on appeal, where no abuse of discretion is shown, even though it would not authorize a denial on final hearing of the relief demanded in the bill.

Appeal from District Court, Beaverhead County; M. H. Parker, Judge. INJUNCTION by Plora E. Craver against I. B. Stapp'. Prom an order dissolving an interlocutory injunction, tbe plaintiff appeals. Subdivision II, Sec. 871, Code of Civil Procedure, provides for tbe granting and issuance of an injunction where great or irreparable injury would result. It might be argued that the-acts of tbe respondent were only trespasses and an action at law7 would be tbe proper remedy. Trespasses, where frequent, wanton or continued, will be restrained where the injury is great or irreparable, or tbe defendant is insolvent. (Lee v. Watson, 15 Mont. 228; Derry v. Boss, 5 Colo. 295; West v. Smith, 52 Cal. 322; Long v. Casebeer, 28 Kan. 226.) Injunction will lie to restrain tbe removal of tbe plaintiff’s crop by an insolvent defendant. (Lee v. Watson, supra; Ilicks v. Compton, 18 Cal. 206; West v. Smith, 52 Cal. 322, supra; Bohrer v. Babcock, 114 Cal. 126.) Some of tbe 'older decisions go to tbe extent of bolding that so long as a plaintiff has any remedy at law whatever, no recourse can be bad to equity. Such is not tbe effect of tbe later decisions. {Staples v. Rossi et al., 65 Pac. Pep. 67; King v. Stewart, 84 F'ed. 546; King v. Campbell, 85 Fed. 814; Watson v. Sutherland, 5 Wall. 74.) Where the injury to the defendant from the temporary injunction would be less than the injury to the plaintiff, should the plaintiff succeed, the injunction should be granted. (Gil-pin v. Mining Co., 23 Pac. Pep-. 547; Staples v. Rossi, supra-.') Where there is a conflict of evidence, the granting or dissolving of an injunction, being so much in the discretion of the lower court, the supreme court will never disturb its action. {Ileinze v. B. & M. Company, 20 Mont. 531; Red Mountain M. Co. v. Ester, 18 Mont. 176; Anaconda C. M. Company v. B. & B. M. Company, 17 Mont. 521; Cotter v. Cotter, 16 Mont. 63; Boyd v. Desrozier, 20 Mont. 449; Combers v. Lowry, 21 Mont. 481, and numberless other cases of the supreme court of Montana.) The granting or dissolving of an injunction is so largely within the discretion of the lower court, that the supreme court will never disturb its action, unless there has been a manifest-abuse of discretion. {Ileinze v. B. & M. Company, 20 Mont. 531, and cases there cited.)