Dodge Bros. v. General Petroleum Corp. , 54 Nev. 245 ( 1932 )

ON PETITION FOR A WRIT OR ORDER STAYING ALL PROCEEDINGS UNDER INJUNCTION [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] OPINION This is an appeal from an order of injunction pendente lite and from an order refusing to dissolve or modify the injunction after a full hearing had in the court below for that purpose. Since appeal the appellant, who was the defendant in the action, has petitioned this court for a writ or order staying all proceedings under the injunction. The injunction order reads as follows:

"The plaintiff in the above-entitled cause having this day commenced an action in the First Judicial District Court of the State of Nevada, in and for Ormsby County, against the above-named defendant, and having prayed for an injunction against the said defendant requiring it to refrain from certain acts in said complaint and hereinafter mentioned; On reading the complaint in said action, duly verified by the oath of Carl F. Dodge, and it satisfactorily appearing to me therefrom that it is a proper case for an injunction and that sufficient grounds exist therefor, and the necessary undertaking having been given; It is therefore ordered by me, Clark J. Guild, the judge of said District Court, that until further order in the premises, you, the said General Petroleum Corporation of Nevada, defendant herein, and each and every of your attorneys, officers, servants, employees and agents, and all others acting in aid or assistance of you, do absolutely desist and refrain from:

"(1) Refusing or failing to promptly ship to the plaintiff at Reno, Nevada, the car of ``Motogas' third structure gasoline ordered by the plaintiff on March 9, 1932, as alleged in the complaint, or any further supply of such commodity which the plaintiff may hereafter order;

"(2) Imposing any conditions or restrictions upon shipment or delivery of any of defendant's products ordered by plaintiff or upon payment therefor except as outlined in letter or memorandum set out in paragraph VII of the complaint herein and dated December 29, 1930;

"(3) Threatening or attempting to terminate any contract heretofore made between the plaintiff and defendant or from giving any notice or commencing any act indicating an intention to so do;

"(4) In any manner interfering with, interrupting, impeding or disrupting the plaintiff's business or preventing its orderly conduct as set out in plaintiff's complaint or otherwise;

(5) And/or committing any breach whatsoever of the contracts set out in the complaint herein according to the legal effect thereof as pleaded or otherwise."

It is impossible to read the order without seeing plainly that, while it is prohibitive in form, it is mandatory in its effect. It commands the appellant to absolutely desist and refrain from doing five specific acts.

The court is of the opinion that an order staying the proceedings under the injunction pending appeal should issue. It is therefore ordered and adjudged that the proceedings in that certain suit entitled "Dodge Bros., Inc., a Nevada Corporation, Plaintiff, v. General Petroleum Corporation of Nevada, a Nevada Corporation, Defendant," upon that certain order of injunction made and entered on the 12th day of March, 1932, and that certain order made and entered on the 25th day of March, 1932, refusing to dissolve said injunction, be and the same are hereby stayed until the final determination of the merits of the litigation on appeal, unless the said petroleum corporation shall fail and neglect to execute and file with the clerk of the lower court a good and sufficient stay bond in the amount to be fixed by the lower court or the judge thereof within five days from the entry of the order fixing the amount of such stay bond.

It is further ordered that in case of the failure of said petroleum corporation to execute and file said bond within the time mentioned, then the stay herein ordered shall no longer be of force and effect.

The members of the court concur in the order, but differ in the reasons which lead to that decision. The writer is influenced to concur in the order upon the authority of the following cases: Lovelock Merc. Co. v. Lovelock Irr. Dist., 51 Nev. 179, 272 P. 1; State v. Ducker, 35 Nev. 214, 127 P. 990; Silver Peak Mines Co. v. Second Judicial Dist. Court, 33 Nev. 97, 110 P. 503, Ann. Cas. 1913d 587; Brooks v. Nev. Nickel Syndicate, 24 Nev. 311,53 P. 597; 3 C.J. 1924, sec. 1420; 3 C.J. 1281, sec. 1405.