Opinion
No. 6449.
October 29, 1937.
On certified record from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.
Plaintiff (respondent herein) commenced an action praying for an injunction and after notice and hearing on affidavits procured a temporary restraining order. Certified copy of the records and files used on the hearing was filed in this court by one of the defendants, who is styled appellant here, on which a review of the proceedings as if on appeal is sought. Respondent moved to dismiss proceedings in this court. Motion granted, and cause remanded.
Oppenheim Lampert, for Appellant.
Cases involving labor disputes are specified in section 12 of chapter 215, supra, and are such as at issue here. (Sec. 12, chap. 215, Ida. Sess. L., 1933; Title 29, U.S.C.A., sec. 113 (a); United States v. Weirton Steel Co., 7 Fed. Supp. 255; Cinderella Theater Co. v. Sign Writers Local Union, 6 Fed. Supp. 164.)
In a case involving or growing out of a labor dispute, these defendants are a party to that dispute against whom relief is sought, and the courts of this state are without jurisdiction to issue a temporary injunction in such case unless the testimony of witnesses is heard in open court with opportunity for cross-examination. (Chap. 215, Ida. Sess. L., 1933; Title 29, U.S.C.A., chap. 6; United States v. Weirton Steel Co., supra.)
A preliminary injunction is never granted where the pleadings and affidavits disclose that the plaintiff's contention in fact and in law are seriously disputed. ( United States v. Weirton Steel Co., supra; Lare v. Harper Bros., 86 Fed. 481, 30 C. C. A. 373; United States v. Zukauckas, (D.C.) 293 Fed. 756; General Talking Pictures Corp. v. Stanley Co., (D.C.) 42 Fed. (2d) 904.)
Richards Haga, for Respondent.
Pursuant to section 13 of article 5 of the constitution of the state of Idaho, the legislature enacted a system of appeals, and section 9 of chapter 215, Idaho Session Laws, 1933, is not a proper amendment or repeal of the same and is uncertain, ambiguous and incomplete, without process or notice, and insufficient to give the supreme court jurisdiction, and where any act is taken by an appellant inconsistent with his appeal, the same must be dismissed. (Ida. Const., art. 5, sec. 13; secs. 11-202 to 11-221, I. C. A.; Sonleitner v. McLaren, 52 Idaho 791, 20 P.2d 1014; Richardson v. Banbury, 39 Idaho 1, 225 P. 1023; 4 R. C. L., sec. 43, p. 61; 4 C. J., sec. 2437.)
This action was instituted by respondent, a corporation doing a general wholesale grocery business, against appellant, Stevenson, as manager and executive secretary of "Local No. 483," commonly known as "Teamsters Union" (an association composed of teamsters, chauffeurs, stablemen and helpers, generally known as a "Labor Union"), Local No. 483, its president and others. Stevenson is the only one here complaining of the action of the trial court and he is called appellant merely by order of court, for purposes of designation, not by reason of having taken an appeal. An order to show cause was issued out of the trial court and on the return day affidavits and counter affidavits were filed, and the motion for temporary restraining order was heard and determined on the pleadings and affidavits alone. After the hearing the court ordered the issuance of a temporary restraining order and thereupon Stevenson, designated as appellant herein, presented a motion to the trial judge for an order certifying the entire record of the case to this court, under the provisions of sec. 9 of chapter 215, 1933 Session Laws, page 452, as a "labor dispute." The trial judge declined to so certify the record. The order recites:
"The Court and said Judge thereof having heretofore, upon the hearing had on the application of the plaintiff herein for a temporary injunction and the order to show cause, in connection therewith, found, upon the record presented upon said hearing by the parties to the above entitled cause, that no labor dispute existed as defined by and under said Chapter 215, Idaho Session Laws of 1933, and that the order of said Court and said Judge thereof, granting a temporary injunction, dated February 23, 1937, and the writ issued pursuant thereto on the same day, were not granted in a case involving or growing out of a labor dispute as provided by said Section 9 of said Chapter, and the request and application of said R.D. Stevenson for certification under said Section 9 should, therefore, be denied, and
"The Court and said Judge thereof having used and considered, upon such hearing on such application for such temporary injunction, and there having been submitted to said Court and the Judge thereof, the entire record in the above entitled cause, and it appearing to the Court that said R.D. Stevenson should have every opportunity of presenting such record for appellate review and that this court and said Judge thereof should certify such record as having been submitted to and used and considered by said Court and Judge on said application for temporary injunction and order to show cause, and in the issuance of such order for temporary injunction,
"NOW, THEREFORE, said request and application is denied as under said Section 9 of said Chapter 215, Idaho Session Laws, 1933, and said record in the above entitled cause be, and hereby is, certified as follows:
"IT IS HEREBY CERTIFIED By the undersigned, Chas. F. Koelsch, Judge of the District Court of the Third Judicial District of the State of Idaho, in and for the County of Ada, that the following papers, files, documents and proceedings, to-wit:"
(Here files are listed)
were submitted to me as Judge of the above entitled Court, and used and considered by me on the hearing on plaintiff's application for temporary injunction and the order to show cause why such temporary injunction should not issue, and constitute and are all of the records, papers and files used or considered by me on said application and order to show cause, and the entire record of the above entitled cause." (Italics ours.)
From the foregoing order it appears that the trial judge declined and refused to certify the proceedings to this court under the provisions of the Labor Disputes Act (chap. 215 of 1933 Sess. Laws) because he had already found and held that the case did not involve a "labor dispute" as defined by the act. He did, however, certify to the papers used by him on the hearing. It is made his duty or that of his clerk, under sections 7-607 and 11-213, I. C. A., and Rule 23 of this court, to certify to the papers used on the hearing of a motion, the ruling on which is appealable, in order to have the same reviewed on appeal. ( Hall v. Jensen, 14 Idaho 165, 93 P. 962; Dudacek v. Vaught, 28 Idaho 442, 154 P. 995; Spencer v. John, 33 Idaho 717, 721, 197 P. 827; Leland v. Twin Falls Canal Co., 51 Idaho 204, 3 P.2d 1105.)
At the very outset of our inquiry we are confronted by a motion to dismiss this proceeding on the grounds, among others, that, (a) this court has no jurisdiction of the proceeding; (b) that no notice of appeal has ever been served or filed as required by law; (c) that the proceeding, by which the case is attempted to be brought before this court, is not in compliance with the rules of this court or the statutes regulating appeals and reviews, as authorized by the constitution.
It must be conceded that the case is not here by or through any recognized procedure provided for bringing cases here from trial courts, — it is not an appeal and it is not certified as a "labor dispute"; nor does it come here in compliance with or in pursuance of any rule of this court.
The matter here complained of is only a temporary restraining order pending trial of the case on its merits. Such a trial could have been had long before this matter was presented to us and a decision could have been had on oral testimony upon the merits of the controversy. So also could the witnesses have been cross-examined in this proceeding in the trial court under sec. 6-411, I. C. A. In this state of the record and proceeding we are asked to take jurisdiction of the controversy and decide the only real issue involved in the case upon ex parte affidavits and construe and apply a statute new and somewhat novel in this jurisdiction, on which federal courts and several state courts have expressed various and sometimes conflicting views and opinions. ( United States v. Weirton Steel Co., 7 Fed. Supp. 255, at 263; Cinderella Theater Co. v. Sign Writers' Local Union, etc., 6 Fed. Supp. 164; Knapp-Monarch Co. v. Anderson, 7 Fed. Supp. 332; Miller Parlor Furniture Co., Inc., v. Furniture Workers' Industrial Union, 8 Fed. Supp. 209; Levering Garrigues Co. v. Morrin, 71 Fed. (2d) 284; American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 Sup. Ct. 72, 66 L. ed. 189, 27 A.L.R. 360; American Furniture Co. v. I. B. of T. C., etc., 222 Wis. 338, 268 N.W. 250, 106 A.L.R. 335; Senn v. Tile Layers Protective Union, etc., 222 Wis. 383, 268 N.W. 270; Id., 301 U.S. 468, 57 Sup. Ct. 857, 81, L. ed. 1229; Truax v. Corrigan, 257 U.S. 312, 42 Sup. Ct. 124, 66 L. ed. 254, 27 A.L.R. 375; Donnelly Garment Co. v. International Ladies' Garment Workers' Union, 20 Fed. Supp. 767, decided August 13, 1937, cases cited by appellant; United Elec. Coal Cos. v. Rice, 80 Fed. (2d) 1, 297 U.S. 714, 56 Sup. Ct. 590, 80 L. ed. 1000; Lauf v. E. G. Shinner Co., 82 Fed. (2d) 68; Safeway Stores, Inc., v. Retail Clerks' Union, etc., 184 Wn. 322, 51 P.2d 372; Robinson v. Hotel R. E. Local 782, 35 Idaho 418, 207 P. 132, 27 A.L.R. 642; Scavenger Service Corp. v. Courtney, 85 Fed. (2d) 825; Edjomac Amusement Corp. v. Empire State Motion Picture Operators' Union, Inc., 156 Misc. 856, 283 N.Y. Supp. 6, cases cited by respondent.
We hold that this court has not acquired jurisdiction of the matters sought to be reviewed. The proceeding to bring the case into this court for review is dismissed and the cause is remanded. No costs awarded.
Morgan, C.J., and Holden, J., concur.
Givens, J., dissents.
Budge, J., expresses no opinion.