Opinion
No. 7,699.
Submitted June 4, 1937.
Decided June 16, 1937. Rehearing denied July 1, 1937.
Certiorari — Contempt — Injunctions — Restraining Orders — Jurisdiction — Issuance Without Notice — Attempt to Restrain Beyond Reasonable Time — When Judgment of Contempt a Nullity. Temporary Restraining Order — Insufficiency of Complaint — When Immaterial. 1. Where the district court had jurisdiction of a cause in which it issued a temporary restraining order, the fact that the complaint upon which it was issued was insufficient would not render the order void for want of jurisdiction, the court having the power to decide the question wrong as well as right. Injunctions — Divided into Three Classes. 2. Under the Montana law there are three classes of injunctions: a temporary restraining order, an injunction pendente lite, and a permanent injunction. Same — Temporary Restraining Order — Nature of Order. 3. A temporary restraining order is one designed to maintain conditions in status quo until a hearing can be had on notice to determine whether an injunction pendente lite should be issued; such an order may be issued without notice. Injunction Pendente Lite — Purpose. 4. An injunction pendente lite affords restraint during the pendency of the action and until final determination of the cause. Injunction — Notice. 5. Under section 9245, Revised Codes, no injunction order or restraining order shall be issued without notice unless it appears to the court that irreparable injury would result by the delay of giving notice. Temporary Restraining Order Without Notice — Duty of Court. 6. Upon granting a temporary restraining order without notice it is the duty of the court to set the matter for hearing for an injunction pendente lite at a very early date, to the end that a temporary expedient may not in fact become an injunction. Injunction Pendente Lite — When Court Without Jurisdiction in Absence of Notice. 7. While the district court has jurisdiction to grant a temporary restraining order to preserve conditions in status quo for a reasonable time until a hearing may be had on notice for an injunction pendente lite, it is without jurisdiction, in the absence of notice, to restrain pending suit, where the rights of the parties depend upon disputed title and ownership of the property in question. Contempt — Temporary Restraining Order Beyond Reasonable Time Void for Want of Jurisdiction — Contempt Committed Five Years After Making of Order — Judgment a Nullity. 8. Where plaintiff in an action seeking restoration of real property petitioned for an injunction pendente lite, and the district court without notice or hearing granted the petition, the order, treated as a temporary restraining order, after the lapse of a reasonable time had spent its force, and to the extent that it attempted to restrain beyond a reasonable time it was void for want of jurisdiction; hence a judgment of contempt alleged to have been committed nearly five years after the order was made was a nullity. Same — Certiorari — Supreme Court will not Uphold Judgment of Contempt Where case in Which Injunction Order Made Should have Been Dismissed for Want of Prosecution. 9. The supreme court on application for writ of certiorari to review a judgment of contempt will not encourage inordinate delay in judicial proceedings, even where the trial court had jurisdiction to make an injunction order pendente lite, by giving vitality to such an order in a case which should have been dismissed on the court's own motion for want of prosecution, long before the alleged contempt.
Appeal from District Court of the County of Glacier, John Hurly, Judge.
Mr. S.C. Ford, Mr. Sam D. Goza, Jr., and Mr. J.D. Fitzstephens, for Relator, submitted a brief; Mr. Ford argued the cause orally. Mr. E.J. McCabe and Mr. S.J. Rigney, for Respondents, submitted an original and a reply brief; Mr. McCabe argued the cause orally.
This court on application of relator issued a writ of certiorari to review the action of respondent court in adjudging relator in contempt of court. The judgment of contempt resulted from the following proceedings:
M.D. Rigney on October 10, 1932, filed a complaint in the district court of Glacier county against J.W. Cook, seeking restoration to possession of certain described real property situated in Cut Bank and used as a restaurant. Plaintiff in that action asked for an injunction pendente lite. Without notice or hearing, and on October 11, 1932, the court ordered that until the further order of the court, and during the pendency of this action, "J.W. Cook, and all your counsellors, attorneys, agents, servants, employees, and all other persons acting in aid or assistance of you, and each of you, do absolutely desist and refrain from in any manner interfering with or obstructing or attempting to interfere with or obstruct the plaintiff, M.D. Rigney, her lessees, agents, or employees, the quiet and peaceful occupancy and use of the property and premises" particularly described. It further ordered that plaintiff have peaceable entrance to and the quiet and peaceful use and occupancy of the premises pending the further order of the court. The injunction order was served on J.W. Cook on October 11, 1932. The action is still pending and has never been tried.
On January 20, 1937, M.D. Rigney, through her counsel, made application to the court for an order requiring J.W. Cook to show cause why he should not be adjudged in contempt of court for violating the terms of the injunction order. The order to show cause was granted, and, after hearing held, J.W. Cook was adjudged in contempt of court and judgment of contempt pronounced against him. This proceeding followed.
The first point pressed upon us in the application before us [1] is that the injunction order is void for want of jurisdiction, because the complaint upon which it was issued was insufficient. If the complaint were held to be insufficient, it would not render the injunction order void for want of jurisdiction. ( State ex rel. Delmoe v. District Court, 100 Mont. 131, 46 P.2d 39.) It was issued in a cause over which the court had jurisdiction, and, if error was committed in that respect, it was error within jurisdiction. In other words, the court had the power to decide the question "wrong as well as right." ( State ex rel. Coad v. District Court, 23 Mont. 171, 57 P. 1095, 1097.) As a temporary restraining order the court had jurisdiction to grant it, even though we were to say that the complaint was insufficient.
The more important question, and one going to the jurisdiction of the court, is whether the restraining order had validity for a period of nearly five years as an injunction pendente lite. We think it did not.
Under the laws of Montana we have three classes of [2-5] injunctions: A temporary restraining order, an injunction pendente lite, and a permanent injunction. A "temporary restraining order" is one designed to maintain conditions in status quo until a hearing can be had on notice to determine whether an injunction pendente lite should be issued. ( Wetzstein v. Boston Montana C.C. S.M. Co., 25 Mont. 135, 63 P. 1043; Labbitt v. Bunston, 80 Mont. 293, 260 P. 727, 730.) The "injunction pendente lite" affords restraint during the pendency of the action and until final determination of the cause. A "temporary restraining order" may be granted without notice, but "in no case shall an injunction order or restraining order be issued without notice, unless it appears to the court or judge that irreparable injury would result by the delay of giving notice." (Sec. 9245, Rev. Codes.)
When a temporary restraining order is issued there can be no possibility of injury during the time required to give notice for an injunction pendente lite. It is the duty of the court upon [6] granting a temporary restraining order without notice, to set the matter for hearing for an injunction pendente lite at a very early date, to the end that "a temporary expedient may not, in fact, become an injunction." ( Labbitt v. Bunston, supra.) And six weeks has been held an unreasonable time to restrain without notice and a hearing. ( Wetzstein v. Boston Montana C.C. S.M. Co., supra.)
Hence, while the court had jurisdiction to grant the [7] restraining order to preserve conditions in status quo for a reasonable time until a hearing could be had on notice for an injunction pendente lite, it had no jurisdiction without notice to attempt to make an order pendente lite. In Labbitt v. Bunston, supra, this court quoted with approval from the case of State ex rel. Miller v. Lichtenberg, 4 Wn. 407, 30 P. 716, as follows: "The court gets no jurisdiction in the matter for the purpose of interfering with the rights of either party until the giving of notice as required by statute."
The court was without jurisdiction in the absence of notice to restrain pendente lite, where, as here, the rights of the parties, as shown by the record, depended upon disputed title and ownership of the property. We do not mean to hold that there can never be an injunction pendente lite without notice, but only that where, as in this case, there is interference with the alleged rights of one of the parties based upon asserted ownership of property, notice is prerequisite.
Hence, treating the order as a temporary restraining order, it [8] was effective to preserve the status quo for a reasonable time necessary to enable notice to be given for a hearing as to whether it should be effective pendente lite, but it could not be effective pendente lite without notice or hearing. After the lapse of a reasonable time the restraining order had spent its force, the same as if an order to show cause had issued and neither party appeared at the time fixed for hearing. (Compare Ex parte Grimes, 20 Okla. 446, 94 P. 668.) To the extent that the order attempted to restrain beyond a reasonable time it was void for want of jurisdiction. The alleged contempt was committed, if at all, nearly five years after the injunction was issued and long after its efficacy as a restraining order had ceased.
Moreover, were we to say that the court had jurisdiction to [9] make the injunction order we would not sustain the judgment of contempt, and thus to that extent encourage inordinate delay in judicial proceedings by giving vitality to an order entered in a case at the instance of plaintiff, which case should have been dismissed long before the alleged contempt, on the court's own motion for want of prosecution.
The judgment of contempt is accordingly annulled.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES STEWART, ANDERSON and MORRIS concur.