McKeever v. Buker , 80 Kan. 201 ( 1909 )

'The opinion of the court was delivered by

Smith, J.:

The petition, after reciting substantially the facts stated, avers that the plaintiffs had objected 'to the defendant’s maintaining the switch and notified him to remove the same; that upon his refusal so to ■do they had disconnected his line from the line of the Blue Mound company, and that he had thereafter reattached the same. Their ground for injunction is embraced substantially in the following paragraph:

“Plaintiffs further aver that they have no adequate remedy at law, and that, they suffer great annoyance and inconvenience by reason of the said defendant’s ■connecting his individual telephone with another telephone company’s line, switch-board and exchange, while being connected with the line, switch-board and ■exchange of the Farmers’ Mutual Telephone Company, ■and that said plaintiffs will suffer irreparable injury if said defendant is permitted to keep his said individual telephone so connected with the two said telephone companies as hereinbefore alleged.”

The defendant contends that the petition does not 'state facts sufficient to sustain a cause of action. Section 87 of the civil code provides:

“The petition must contain, . . . second, a statement of the facts constituting the cause of action, in ■ordinary and concise language, and without repetition.”

Injunction is an extraordinary remedy, and is .granted only where it appears that the 'plaintiff has 'no adequate remedy at law and if the defendant be not restrained from committing the wrong the plaintiff Will suffer irreparable injury. Applying the requirements of the code to this special requirement, a petition to be sufficient must state facts which show that the plaintiff has no adequate remedy at law and if the injunction be denied he will suffer irreparable injury. 'This petition merely pleads the bald conclusions, unless it be that* the allegation that they'will suffer great annoyance and inconvenience be an allegation of specific facts; but this allegation seems to be almost equally a conclusion. These allegations are formal, and are properly used when pleaded in connection with facts which, taken as true, would constitute annoyance, inconvenience or irreparable injury. There is no allegation in this petition, however, that the line of the Blue Mound company was by the defendant at any time connected with the line of the Independent company. We think the petition fails to state a cause of action in injunction, and the demurrer thereto should have been sustained.

It is also contended that the evidence was insufficient to sustain the judgment in favor of the-plaintiffs, but we need not discuss this if, as we have concluded, the petition was insufficient and error was committed in denying the motion for judgment on the pleadings.

We have not been favored with any brief on the part, of the defendants in error, and heard only a brief oral argument on their behalf. Such an argument, disconnected with any brief, is, to a court unfamiliar with the facts and after days spent in hearing other cases, cohsultating thereon, and deciding the same, of little assistance.

The c.ase is remanded, with instructions to set aside the judgment and to proceed in accordance with the-views herein expressed.