Bracken v. Stone , 20 Okla. 613 ( 1908 )

The first ground of the motion to dissolve in the lower court is "that the petition in said cause does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants." The first question, then, is, did the court err in sustaining this contention, which is in the nature of a general demurrer to the petition? 10 Enc. Pl. Pr. p. 1046, says:

"On a motion to dissolve the injunction for the want of equity in the bill, facts which are well pleaded in the bill are to be taken as true the same as upon a demurrer." (Citing authorities.)

It is urged that the petition fails to "allege any irreparable injury or damage, or show that any irreparable injury or damage is threatened. It does not allege or show that the injury or threatened injury is not susceptible of adequate compensation in damages. It does not allege that the defendants or any of them are insolvent. * * *" It is elementary that all these allegations are essential to entitle plaintiff to a temporary injunction. While the complaint concludes "to the irreparable damage of the plaintiff," this is not sufficient. 10 Enc. Pl. Pr. p. 954, says:

"A general allegation that the acts apprehended will be irreparable, unattended by such a statement of facts as enables the court to see that such will be the result, is insufficient. The pleader must not content himself with a mere averment of his conclusions, but must show how the irreparable injury apprehended is to arise by giving a full and detailed statement of the facts and circumstances, the nature and condition of his property, etc., so as to enable the court to determine the necessity for an injunction."

The threatened trespass sought to be enjoined cannot be shown to be irreparable, unless coupled with the allegations of the insolvency of the defendants, and the absence of it renders the complaint fatally defective. 10 Enc. Pl. Pr. p. 956, says:

"It frequently happens that the insolvency of the defendant is a material fact, which should be charged in order to show that the injury will be irreparable, especially where an injunction is sought against breach of contract, a nuisance, a trespass, or a waste; and such an allegation is all the more important when the damages are capable of estimation because if the damages can be assessed by a jury, and the defendant is solvent, the remedy at law is necessarily adequate."

But to put the matter of solvency of defendants beyond question, and to show that such they were, and that the injury, if inflicted, would not be irreparable, and for which plaintiff would have an adequate remedy at law, defendants filed affidavits showing the undoubted solvency of each of them, and, in substance, that they were the mayor, city council, and marshal of the city of Kingfisher, and, as such, were acting in the premises under and by virtue of certain ordinances of said city which provide, among other things, that it should be unlawful for any person to construct or remove to a location within a certain part of said city called the "fire limits" such a building as is the one in controversy; that plaintiff had violated these ordinances with reference to the building in question; and that by resolution of the city council it was ordered by the mayor and city council that the same be forthwith removed therefrom and out of the fire limits as established by said ordinances, and that the city marshal was duly ordered to remove said building accordingly.

Marshal v. Homier, 13 Okla. 264, 74 P. 368, is directly in point. In that case the court said:

"Upon the motion to dissolve the temporary injunction affidavits and oral testimony were heard by the judge, and are incorporated in the record. The evidence shows clearly that the defendants are solvent, and are amply able to answer in damages in any sum that could be recovered by the plaintiffs, and the action being one for which the injury complained of by plaintiffs can be fully compensated in damages, the order of the judge dissolving the temporary injunction was clearly right. Where the alleged contemplated injury is such as can be fully compensated in money damages, and the defendants are wholly and unquestionably solvent and responsible, a temporary injunction should not be granted; and, where a temporary injunction is granted upon proper motion it should be dissolved, and the plaintiff left to his remedy by an action for damages, which under the circumstances is adequate. It is well settled that an injunction should not be granted or allowed where there is a full and adequate remedy at law."

It is unnecessary to consider the other grounds upon which the court sustained the motion. It follows that the court did not err in vacating the temporary injunction, and its action in so doing is therefore affirmed.

All the Justices concur.