Clancy v. Geb

The following opinion was filed October 3, 1905 : Siebeckek, J. From the facts as found by the trial court it is apparent that the ground for a perpetual injunction against defendants had ceased to exist at the time of the trial, though a good cause of action existed for temporarily enjoining defendants at the time the action was commenced. The only relief sought in the action was preventive, namely, to enjoin defendants from injuring plaintiff in his business. Under such circumstances the court is justified in refusing to grant the relief of a perpetual injunction and in dismissing the complaint. This practice is sustained when the facts show that there is no imminent peril to the lights of a complainant at the time of trial, though such peril may have existed when the action was commenced. The remedy by injunction is deemed “a necessity only when it is perfectly clear from the facts that, unless granted, the complainant may be [289] irreparably injured, and that be can have no adequate remedy at law for the mischief occasioned.” It is manifest from the evidence that the strike had ended and that the defendants had abandoned their original purpose of injuring plaintiff in his business. ETo grounds for apprehending that they were liable to commit any future acts to his injury were left. Under these circumstances the trial court, in its discretion, was warranted in refusing to make the injunction perpetual. We find no grounds for holding that it abused this discretion. Reynolds v. Everett, 144 N. Y. 189, 39 N. E. 72; 16 Am. & Eng. Ency. of Law (2d ed.) 344; Wiswell v. First Cong. Church. 14 Ohio St. 31. The court, however, awarded judgment of dismissal of the action and for costs against the plaintiff. The record shows, that defendants joined issue upon the cause of action alleged! against them for an injunction. This position they maintained to the end of the trial. The court found that they were guilty of the wrongs alleged against them by the plaintiff when the action was commenced, and that the suit was in. its origin properly brought for preventive relief by injunction, but that the protection of plaintiff’s rights had been fully accomplished by the interlocutory remedy of a temporary injunction, and that no grounds existed for apprehending further injury to plaintiff’s rights. Since the trial resulted in sustaining his cause of action for preventive relief to the extent indicated, the plaintiff was justified in prosecuting the action to a final termination, and was entitled to the usual favorable consideration of a prevailing party on the question of costs. We find nothing in the case that negatives the justness of plaintiff’s claim to his costs, and they should in equity be awarded him. Spengler v. Hahn, 95 Wis. 472, 70 N. W. 466; Menz v. Beebe, 102 Wis. 342, 78 N. W. 601; Mowry v. First Nat. Bank, 66 Wis. 539, 29 N. W. 559; Avery v. Wilson (C. C.) 20 Fed. 856; 11 Cyc. 32, subd. B; Nolamd v. Pope, 7 J. J. Marsh. (Ky.) 137. Upon the findings the court [290] in its discretion properly refused to make the injunction perpetual, hut erred in granting judgment dismissing the action and awarding costs to the defendants. It should have decreed that plaintiff have judgment for costs against defendants, and denied further relief as unnecessary. By the Court. — -Judgment reversed, and the cause remanded with directions to enter judgment in favor of plaintiff in accordance with this opinion. Upon a motion by the appellant for a rehearing there was a brief in his behalf by Palmer & GUlings, attorneys, and M. F. W alicer, Thomas M. Kearney, and Jolviv B. Simmons, of counsel. They contended, inter alia, that whether or not a plaintiff, either at law or in equity, is entitled to the relief demanded must be determined by the status of the parties at the time of the institution of the suit. The only exception to the foregoing rule arises in cases where the party seeking relief voluntarily changes his status after suit brought and before judgment. U. S. v. Workingmen's A. C. 54 Fed. 994. The most valuable and dependable test for determining whether a temporary restraining order should be made, is whether, conceding the truth of all that is alleged in the bill, the plaintiff is entitled to have the acts complained of perpetually enjoined. Corning v. Troy I. & N. F. 6 How. Pr. 89; Gentil v. Arnand, 38 How. Pr. 94; International T. C. Co. v. Mills, 22 Fed. 659; Foley v. Guarantee T. & S.-D. Co. 74 Fed. 759; Hamilton v. Wood, 55 Minn. 482. If a defendant may persistently invade the right of a plaintiff and, after suit brought, prevent the injured party from obtaining permanent relief by obeying a temporary restraining order, it would be possible to defeat a recovery in every case in which a permanent injunction is sought. The true rule is that where, as here, the court has acquired jurisdiction of the action, a defendant cannot, by removing the cause of complaint or discontinuing the act or course of conduct complained of, deprive the plaintiff of [291] the relief to which he was entitled at the date of the filing of the hill. 2 Spelling, Inj. & Extr. Rem. § 1028; Roberts v. Louisville, 92 Ky. 95, 17 S. W. 216; Duff v. Russell, 14 N. Y. Supp. 134; Pacific Mut. Tel. Co. v. C. & A. B. Co. 36 Kan. 118, 12 Pac. 560. Eor the respondent it was argued, among other things, that plaintiff may he entitled to a temporary injunction although his right to permanent relief may ultimately fail. High, Injunctions (4th ed.) § 5; Great Western R. Co. v. Birmingham, & O. J. R. Co. 2 Phil. (Eng. Ch.) 597; 16 Am. & Eng. Ency. of Law (2d ed.) 345. The fact that a temporary injunction was properly granted does not of itself prove that a permanent injunction would have been granted. The motion was denied December 12, 1905. Winslow, L, took no part.