McLaughlin v. Del Re

McKinstry, J.

The action is neither to recover specific property, nor for money claimed as due upon contract, or as damages for breach of contract; nor “for injuries” simply. The issues of fact ought, therefore, to have been tried by the court, unless the court saw fit to order any or all of them to be submitted to a jury. (Code Civ. Proc. § 592.)

The action is in equity, the main purpose of it being to obtain a final decree restraining the continuance or repetition of the trespasses alleged, which are of a character, as claimed, to produce irreparable injury. (Code Civ. Proc. § 526.) The facts alleged appeal to a court of equity, for preventative relief, on the grounds that pecuniary compensation would not afford adequate relief, and that restraint is necessary to prevent multiplicity of suits. (Code Civ. Proc. § 3422.)

Judgment and order reversed and cause remanded with direction to the court below (on the testimony already taken and such further testimony as may be taken before the court) to find the facts and enter appropriate judgment thereon.

McKee, J., and Ross, J., concurred.