Queen v. Swink

December 22, 1925. The opinion of the Court was delivered by On account of certain inaccuracies in the opinion herein filed on October 26, 1925, which has been called to the attention of the Court by the appellants in a petition for a rehearing, that opinion is withdrawn and the following is substituted in lieu thereof:

This is an appeal from an order of Special Judge, Hon. J.M. Nickles, dissolving a restraining order signed by his Honor, Judge Bonham, Circuit Judge, against the plaintiff; refusing the motion of the defendants for an injunctionpendente lite, against the plaintiff; and continuing of force the injunctions ordered by Judge Bonham against the defendants.

The plaintiff's case is this: That in September, 1924, he rented a farm from the defendant Hardin (we assume for the year 1925, although it is not so stated in the complaint) at a certain rental; that he had rented the same farm from Hardin for several years previously, at the same rental; that he, immediately upon making the contract with Hardin, planted about 20 acres of bottom land and some upland, in clover, oats, and rye; that later he and Hardin had a disagreement and by mutual consent the contract for 1925 was called off, and all of the land he expected to cultivate for the year 1925 was surrendered by the plaintiff, except that part which he had sowed down, for which he expected to pay the stipulated rental of a certain part of the crop gathered; that thereafter the defendant Hardin, the landlord, rented all of the place except the land planted by the plaintiff, to the defendant Swink, who took possession and expressed his determination to occupy and cultivate all of it, including the part which the plaintiff had sowed down and which had been expressly reserved by Hardin in his contract with Swink; notified the plaintiff not to come upon the place and threatened to plow under a part of that reserved and gather the crops which belonged to the plaintiff.

The defendant Swink denied any knowledge of the alleged reservation; claimed that he had rented the entire place from Hardin and intended to claim his rights under the contract; and pleaded the statute of frauds against any such reservation. The defendant Hardin denied that he had made any such reservation in favor of the plaintiff, but on the contrary alleged that the plaintiff had voluntarily rented other lands and abandoned all interest in the crop which he had planted. He also pleaded the statute of frauds.

When the suit was commenced, the plaintiff obtained from Judge Bonham a temporary injunction against the defendant Swink, who at that time was the only defendant, enjoining him from interfering with the plaintiff in the making and gathering of the crops which he had planted upon the alleged reservation. The plaintiff was required to and did give bond of $500, conditioned upon his paying to the defendant Swink all damages which he might sustain by reason of the injunction. Thereafter the defendant Swink gave notice of a motion before Judge Bonham for an order (1) vacating the temporary injunction made at the commencement of the action; (2) failing in that, that Hardin the landlord be made a party defendant to the action; (3) in the event that the Court should refuse to vacate the injunction, that the plaintiff be required to execute a bond to said Hardin.

Counsel for the defendants state in their points and authorities submitted upon the petition for a rehearing:

"When this motion came up, the attorney for the defendant, realizing that the complaint of the plaintiff, alleging possession of the land on which the crops were planted, as shown by the second paragraph of the complaint, and also the alleged threatened acts on the part of the defendant Bill Swink, had made out a prima facie case for a temporary injunction; and the Court, Judge Bonham, was asked merely to make E. Hardin a party and to protect his right by a bond to be executed by plaintiff."

Upon the hearing of the motion Judge Bonham passed the following order:

"This is a motion by E. Hardin to be made a party defendant, etc. The motion is granted, and he is required to serve his answer within 10 days from the rising of the Court. Let the plaintiff execute to the said Hardin a bond in the sum of $200, conditioned to pay him such damages as he may sustain by reason of the injunction if the Court shall finally decide that the plaintiff is not entitled to this injunction. Let the bond be approved by the Clerk of this Court and that the said E. Hardin, his agents and servants and representatives, be and they are hereby enjoined from interfering with the plaintiff in the working and gathering of said crops, or interfering with same."

It is not claimed by the defendants that the plaintiff did not execute the bond to Hardin, required by this order, and we assume that he did. The plaintiff, however, having failed to serve Hardin with a copy of the summons and complaint, amended in conformity with the order, the defendant Swink thereafter gave notice of a motion before Judge Bonham for an order: (1) Vacating the injunction on the ground that it had been improvidently issued; (2) failing in this, that the bond executed to Swink be strengthened; (3) vacating the injunction upon the ground that the bond had not been approved; (4) vacating the injunction upon the ground that the amended pleadings had not been served upon Hardin; (5) that Hardin be made a party and the amended pleadings be served upon him.

Again, as upon the first motion, the matter of vacating the injunction, although a ground of the motion, was not pressed, we assume for the same reason as given above by counsel explaining why it had not been pressed on the first motion. Thereupon Judge Bonham passed an order requiring the amended pleadings to be served upon Hardin within 10 days and that he answer; that both the bonds given to indemnify Swink and Hardin be strengthened, under a penalty of vacating the injunctions which had been issued against both of them. Shortly thereafter the amended pleadings were served upon Hardin, who answered and, we assume, the bonds were strengthened.

On the day after the answer of Hardin was served, the defendants applied for and obtained from Judge Bonham an order requiring the plaintiff to show cause at a certain time why he should not be enjoined from entering upon the premises and from gathering the crop thereon and temporarily restraining him. Judge Bonham having left the Circuit, and the resident Judge being ill, the rule to show cause came on to be heard before Hon. J.M. Nickles, Special Judge, presiding in the Seventh Circuit. He signed an order discharging the rule to show cause issued by Judge Bonham, dissolving the temporary restraining order, and continuing of force, "during the pendency of this case on its merits," the original order of injunction signed by Judge Bonham, directed against the defendants for the reasons stated in his third order, which will be reported. From this order the defendants have appealed upon exceptions which will also be reported.

The defendant Swink, by his counsel, concedes that when the original injunction, at the instance of the plaintiff, was issued, the complaint showed a primafacie right in the plaintiff to a temporary injunction, for the reason that it alleged that the plaintiff was in possession of the premises; that for this reason the motion to vacate the injunction was not pressed. Apparently for the same reason Swink's second motion, so far as vacating the injunction was concerned, was likewise not pressed. Clearly, therefore, Swink was without right to move for an injunction against the plaintiff so long as the original injunction, concededly proper, continued of force, for if granted it have had the effect of transferring the possession from the plaintiff to Swink. It is held in Hood v. Edens, 113 S.C. 185;101 S.E., 822:

"Where defendant was in possession of real property, a preliminary injunction should not issue requiring him to surrender possession to plaintiff."

The same rule, of course, applies where the plaintiff is in possession and the defendant moves for an injunction.

In Columbia Co. v. Columbia, 4 S.C. 388, it is said (quoted with approval in Hood v. Edens):

"It is not the province of a preliminary injunction to compel the transfer of property of any kind from one party to another. The party asking for an injunction is assumed to be in possession of the property in respect of which he demands protection, and all the injunction can require on the part of the opposite party is that he should forbear from interfering with that possession. He cannot be required to perform any act whatever. If the plaintiff cannot enjoy his rights without compelling the defendants to perform some act, he must wait until he has established them by his judgment."

The purpose of an interlocutory injunction is merely to preserve the existing status during the litigation, and will not be allowed to have the effect of transferring the possession of property from a litigant in possession to another who claims the right of possession.N.W. Railway Co. v. Colclough, 84 S.C. 37;65 S.E., 950. Atlantic Coast Lumber Corp. v. Lumber Co., 89 S.C. 143;71 S.E., 820. Pelzer v. Hughes, 27 S.C. 408;3 S.E., 781. Evans v. Mayes, 81 S.C. 188; 62 S.E., 207.Darlington Co. v. Pee Dee Co., 62 S.C. 196; 40 S.E., 169.Wilder v. Alderman, 74 S.C. 178; 53 S.E., 950. Atlantic Coast Line R. Co. v. Moise, 85 S.C. 530; 67 S.E., 785.Hood v. Edens, 113 S.C. 185; 101 S.E., 822.

The case of Northwestern R. Co. v. Colcough, 84 S.C. 37;65 S.E., 950, is entirely in accord with this proposition. There the railroad company claimed a right of way over the defendant's land. The defendant had inclosed a part of the claimed right of way with a fence and had erected certain buildings thereupon. The defendant was in possession of the premises in dispute. The railroad company procured an order enjoining the defendant from interfering with its entry upon the premises — an ex parte temporary injunction. Later the defendant moved for an order enjoining the railroad company from entering upon the premises in his possession. The Circuit Judge refused the motion. Upon appeal his order was reversed upon the ground that:

"The first order was ex parte, and it could have been vacated or modified on motion properly noticed. * * * The defendant's motion for injunction against the plaintiff may be considered as, in effect, a motion to modify the previous order, by which the defendant had been enjoined from interfering with the plaintiff's agents and servants in going upon, working upon, and using the premises for its purposes."

The Court held that the practical effect of the refusal of the defendant's motion to enjoin the railroad company, in view of the previous order enjoining the defendant from interfering with the railroad company's entry upon the premises in possession of the defendant, was to transfer the possession from the defendant to the railroad company, in violation of the rule above stated.

So here, the practical effect of granting Swink's motion to enjoin the plaintiff from entering upon the land, in possession of the plaintiff under the allegations of the complaint, would have been to have transferred the possession from the plaintiff to Swink.

Inasmuch as it appears that the order requiring the plaintiff to make Hardin a party defendant was signed (so the order recites) upon the application of Hardin, he is not in a position to claim that the injunction upon him contained in that order is not binding upon him; he applied for it and accepted those parts of it beneficial to him; he cannot accept the benefits and repudiate the burdens. Hardin therefore stands in the same situation as Swink and can with no greater efficacy than he move for an injunction against the plaintiff.

The fear expressed by the appellants that the order of Special Judge Nickles amounts to a decision of the case upon the merits is entirely groundless. The case should proceed to trial upon the merits.

The judgment of this Court is that the order appealed from be affirmed.

MESSRS. JUSTICES WATTS and MARION and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.

MR. CHIEF JUSTICE GARY did not participate.