Glasco v. School Dist. No. 22, McClain County

Whatever may have taken place in these proceedings prior to the hearing of November 16, 1908, and the order entered thereon, in our judgment can in no wise affect the merits of the case as it now appears in this court. The original order, predicated as it is, contended by defendant upon a petition insufficiently verified, was set aside, and the order upon which plaintiff must rely, and which confronts defendant, is the one which was issued as a result of the evidence taken at the hearing had at that time. If the petition was insufficiently verified, defendant waived any irregularity therein by, in the first instance, answering to the merits. 22 Ency. Pleading Practice, p. 1051; 31 Cyc. p. 717, et seq. On the same point, see, also, the case of Cox et al. v. Garrett, 7 Okla. 375,54 P. 546, wherein the Supreme Court of the territory of Oklahoma held:

"The provisions of section 251 of our Civil Code of Procedure, under which a temporary order of injunction may be granted upon a satisfactory showing to the court or judge, upon the affidavit of the plaintiff or his agent, that he is entitled to such an order, do not preclude the judge or court from granting such order without the verification of the petition, or an affidavit in support of the application, if, from the pleadings or other evidence, it is satisfactorily shown to the court or judge that the plaintiff is clearly entitled to the relief prayed for."

The motion upon which the hearing was finally heard was silent concerning the nature of the evidence to be offered at the hearing, and in such a case the Supreme Court of Kansas, inOlsson et al. v. City of Topeka et al., 42 Kan. 709, 21 P. 219, holds that no error is committed in hearing oral evidence where both parties participated. Furthermore, we are not able to see how defendant was in any particular prejudiced. The testimony material for the consideration of the court offered by both parties was practically without serious dispute.

This leaves the question remaining of whether or not the judge at chambers was justified upon the pleadings and the evidence offered in granting a temporary injunction to hold the property in controversy in statu quo until it could be tried upon its merits and the rights of the parties determined. The defendant, relying upon the case of Bracken v. Stone et al.,20 Okla. 613, 95 P. 236, contends that the petition fails to state facts sufficient to justify the relief sought and granted, in that it is not averred that the defendant is not able to respond in damages. The case to which counsel refer in the syllabus holds that a petition, which seeks to enjoin an alleged threatened trespass such as could be fully compensated in money damages, but which fails to show that defendants are insolvent, is fatally defective. In our judgment the character of the damages alleged in this petition is such that could not be adequately met by a money consideration. If the school district is entitled to the possession of this tract of land with its school building, and is entitled to continue to teach school therein, it is difficult for us to understand how a money judgment against defendant would compensate the school district, the patrons of the school, and the school children for the detriment suffered, should they be denied the right to use the same for school purposes. We believe the question is scarcely open to argument.

The purposes and objects of a temporary injunction is to preserve the controverted matter in statu quo, and to prevent further perpetration of wrong or the doing of acts whereby the rights of any of the parties may be materially invaded, injured, or endangered. Joyce on Injunction, § 109a. Defendant admits in his answer that he removed the arbor to which reference has been made; but he avers the same was valueless and had served its purpose, and admits that he is erecting a valuable building on the land. It will be noted that the answer put in question the title to the ground, and also the restraining order issued is mandatory in its character to the extent of requiring him to remove all obstructions and immediately remove all buildings, or building material, and all things else so placed on the premises by him or his agents. Under the ruling limiting the extent to which an injunction, temporary in its character, may properly go, in our judgment the requirement made on defendant to remove his building and material from the grounds exceeds the proper scope of such an order, for the reason that it does more than merely preserve the property in dispute in statu quo until the rights of the parties may be finally adjudicated; while it may not absolutely decide the question of the title, it is such an order as ought to be granted only after the title is determined on a final hearing on the merits.

Mr. Joyce, in his recent work on Injunctions, at section 110, says.

"As the object of a preliminary or temporary injunction is merely to preserve the property in dispute in statu quo and to protect it from injury until the rights of the parties can be finally adjudicated, the court will not, on the hearing of an application to grant or to vacate a preliminary injunction, decide questions of title to the property in dispute, but will reserve such questions until the final hearing upon the merits."

And in the consideration of the same question, the Supreme Court of Vermont, in the case of Griffith v. Hillard, 64 Vt. 643, 25 A. 427, said:

"When it appears that the title is in dispute, the court may, in its discretion, issue a temporary injunction and continue it in force for such time as may be necessary to enable the orator to establish his title in a court of law, and may make the injunction perpetual when the orator has thus established his title; or the court may proceed and determine which party has the better title; or it may dismiss the bill and leave the orator to his legal remedy. Bacon v. Jones, 4 Mylne Craig, 433; Duke of Beaufort v. Morris, 6 Hare, 340; Campbell v.Scott, 11 Simons, 31; Kerr on Injunction, 209; Ingraham v.Dunnell et al., 5 Metc. (Mass.) 118; Rooney v. Soule, 45 Vt. 303;Wing, Adm'r, v. Hall et al., 44 Vt. 118; Lyon v.McLaughlin, 32 Vt. 423; Hastings, Adm'r, v. Perry et al.,20 Vt. 278; Barnes v. Dow, 59 Vt. 530, 10 A. 258; Barry v.Harris, 49 Vt. 392."

Another case where the same question was involved is the case of Huffman v. Hummer, 17 N.J. Eq. 263, wherein the court in the syllabus said:

"When the answer admits the material allegations upon which the equity of the complainant's bill rests, but sets up new matter in avoidance, the injunction will not be dissolved. In many cases the court will interfere and preserve property instatu quo during the pendency of a suit in which the rights to it are to be decided, and that without expressing, and often without having the means of forming, an opinion as to such rights. It is not necessary to the continuance of an injunction that it should be clear that the complainant will succeed at the hearing. It is sufficient if there is ground for supposing that relief may be given."

To the same effect, see the cases of New Jersey Zinc IronCo. v. Trotter et al., 38 N.J. Eq. 3, and Northern Pacific R.Co. v. City of Spokane et al. (C. C.) 52 Fed. 428.

In view of the fact therefore that the title to the ground over the possession of which this controversy arises is in dispute, each party claiming to own it and to be entitled to the undisturbed and absolute possession thereof, and the school district having been in possession of the same with its school building, and having occupied and used it for school purposes, and was so claiming and using the same under and by virtue of a deed of donation at the time, it will for the purposes of this proceeding be deemed to have the better right to the present possession, and the order of the district judge, granting and giving to it this right and restraining the defendant from in any manner whatsoever interfering with the exercise thereof, is affirmed.

It is not shown in the record that the building material and the building constructed thereon by the defendant in any wise interferes with the actual use of the premises for school purposes. Assuming they do not so interfere, and that their presence upon the ground will not militate against the district to any extent in holding school in the building and using the grounds for the purposes incident thereto, the order will be modified, relieving defendant from removing his building and building material from the ground, until the final trial of this action and the determination of the right of title in and to the ground. The defendant will be, however, and he is, restrained from continuing his building operations or continuing to exercise any rights of dominion or possession over or in and to the acre of ground involved, until the final determination of the title.

Except for the modification herein indicated, the order of the district court is affirmed, at the cost of the defendant.

Hayes, Turner, and Williams, JJ., concur; Kane, C. J., absent and not sitting.