Plaintiff (respondent) brought this action to obtain a permanent injunction to prevent alleged trespassing by defendants (appellants) upon lands to which plaintiff claimed exclusive right of possession by virtue of a lease held by it as lessee. The lease — attached to the complaint as exhibit A — executed by Tensed Manufacturing, Inc., as lessor, described certain real property in the village of Plummer in Benewah county, and a dry kiln located thereon, and provides that the premises are "to be occupied for the conduct of a field warehouse on a tenancy from month to month, * * * for the aggregate rental of One Dollar ($1.00)." The trespass complained of was alleged in the complaint as follows:
The complaint also alleged damage resulting from the trespass and that plaintiff had no plain, speedy or adequate remedy at law. The prayer was for a temporary injunction; that upon hearing the injunction be made permanent; and that plaintiff recover $5,000 damages.
Plaintiff filed with the complaint a motion for preliminary injunction and an affidavit made by a representative of the
The motion for preliminary injunction was noticed for hearing on July 14, 1964. On that date defendants appeared and filed a verified answer and counterclaim. The answer denied the allegations of alleged trespasses, threatened trespasses, and damages. In their counterclaim defendants alleged that no property remains in possession of plaintiff upon which it can claim a warehouseman's lien; that the Tensed company has gone out of business; that plaintiff's lease has been abandoned and superseded by storage contract between plaintiff and Stitzinger Lumber Company; that plaintiff no longer stores any goods upon the leased premises for either the Tensed or Stitzinger companies; and that plaintiff's interference with defendants' business operations has damaged defendants in the sum of $150,000.
The clerk's minutes for July 14, 1964, show the following:
The order granting the preliminary injunction recites that the motion therefor was made under and pursuant to IRCP 65, and
After posting and approval of the required bond in the sum of $20,000, the writ of injunction was served upon defendants on July 31, 1964.
July 23, 1964, defendants filed an amended answer and counterclaim which contained the same denials as the original answer and in substance the same affirmative allegations of the original counterclaim, and in addition alleged that the defendant Rudio Lumber Company is the possessor of the premises described in plaintiff's lease; that the officers of the plaintiff corporation had repeatedly threatened to put the defendants out of business and that plaintiff's actions in the premises have been malicious; and prayed, in addition to $150,000 actual damages, punitive damages in the sum of $50,000.
It is evident from the complaint that the principal end sought by plaintiff in the action was the injunction prayed for, and that the preliminary injunction gave plaintiff all the relief it sought in the action, except incidental damages. This is further shown by the record made by plaintiff in this court. In its opposition to defendants' petition for early hearing of this cause, plaintiff represented to this court that pursuant to plaintiff's motion the preliminary injunction was dissolved September 16, 1964, on the ground "that the need for the same no longer existed."
In Rowland v. Kellogg Power & Water Co., 40 Idaho 216, 225, 233 P. 869 (1925), this court said:
In Mountain States Tel. & Tel. Co. v. Jones, 75 Idaho 78, 267 P.2d 634 (1954), this court held that an interlocutory injunction could be issued only after a full hearing before the court, and Justice Thomas, who dissented on other grounds, added:
Our present Rules of Civil Procedure (adopted in 1958) permit the granting of a temporary restraining order to prevent immediate and irreparable injury to the applicant pending a hearing of the application for preliminary injunction. IRCP 65 (b). This was not such a case. Here the application was for a preliminary injunction, under IRCP 65(a), the propriety of which encompassed the entire controversy between the parties.
In numerous cases we have held that in adopting a statute from another jurisdiction our legislature is presumed to have intended to adopt the prior construction of such statute by the courts of the jurisdiction from which it was taken, and if such construction is reasonable it will be followed by the courts of this state.
In Sims v. Greene, 161 F.2d 87 (3rd Cir. 1947), the circuit court set aside a preliminary injunction on the ground that it had been granted upon the pleadings and affidavits filed by the parties and without opportunity to the adverse party to produce oral testimony. The court said:
Our rule IRCP 52(a) is, so far as here concerned, identical with the like numbered federal rule.
The third circuit court again similarly applied the applicable rules in City Line Center v. Loew's, Inc., 178 F.2d 267 (3rd Cir. 1949). See also: 7 Moore, Federal Practice, Par. 65.04(3) at 1636 et seq. (2d ed. 1955); 3 Barron & Holtzoff, Federal Practice and Procedure, §§ 1431, 1433 (1958); Charles Simkin & Sons, Inc. v. Massiah, 289 F.2d 26 (3rd Cir. 1961); Carpenters' District Council, Etc. v. Cicci, 261 F.2d 5 (6th Cir. 1958); Miami Beach Federal Savings & Loan Ass'n v. Callander, 256 F.2d 410 (5th Cir. 1958); Hawkins v. Board of Control of Florida, 253 F.2d 752 (5th Cir. 1958); and the following Federal District Court decisions: Paramount Pictures Corporation v. Holden, 166 F.Supp. 684 (S.D.Cal. 1958); Evening News Pub. Co. v. Allied Newspaper Carriers, 149 F.Supp. 460 (D.N.J. 1957); American Radiator & Stand. San. Corp. v. Sunbeam Corp., 125 F.Supp. 839 (S.D.N.Y. 1954).
IRCP rule 86 in part provides:
Previously existing statutory provisions governing issuance of injunctions, to the extent that they are purely procedural, and to the extent that they are in conflict with applicable rules of IRCP, are of no further force or effect. I.C. § 8-411 is a procedural statute. To the extent that its provisions may be in conflict with IRCP rules 65(a) and 52(a), it is no longer in force or effect.
That statute, however, does not require the party resisting an application for injunction to give notice to the moving party to produce his affiants at the hearing
In this case no hearing was had on the motion for preliminary injunction, and the defendants were denied an opportunity to present evidence in opposition to the application. The court did not make findings of fact and conclusions of law as required by IRCP 52(a). Plaintiff urges that the court considered an offer of proof made by defendants and since defendants did not request that the offer of proof be made a matter of record, it must now be assumed either that the offered proof was inadmissible or that it was insufficient to defeat the application for the preliminary injunction. The burden of proof was on the plaintiff. 7 Moore, Federal Practice, Par. 65.04(1), at 1629, 1630 (2d ed. 1955); 28 Am.Jur., Injunctions, § 25. Plaintiff having submitted the application upon its complaint and the affidavit attached thereto, the defendants were entitled to call their witnesses and present evidence. There was no occasion for an offer of proof until they had a witness on the stand and were confronted by an adverse ruling upon the testimony proposed to be elicited. Since they were not permitted to place witnesses upon the stand and make appropriate offers of testimony, we must presume that they proposed to present testimony in support of their denials of allegations of plaintiff's complaint and in support of the affirmative allegations of their counterclaim. These denials and allegations if supported by evidence, were sufficient to warrant denial of the injunction. The procedure followed by the court effectively denied defendants their right to be heard, and an opportunity to make a record of their opposition to the injunction.
Timely notice and an opportunity to be heard are of the essence of due process, and are jurisdictional essentials of a valid judgment. Leonard v. Leonard, 88 Idaho 485, 401 P.2d 541 (1965); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62.
Plaintiff moved this court to strike from defendants' brief what is titled "Appendix" containing copies of numerous documents recording alleged transactions between the plaintiff, Tensed Manufacturing Company, Stitzinger Lumber Company, and defendants, and also to strike from defendants' brief portions of the argument. In a separate motion plaintiff moved to strike a letter addressed to this court by defendants' counsel, and the copies of two documents attached thereto, the first being plaintiff's motion in the court below to vacate the preliminary injunction, and an agreement between the plaintiff and Tensed Manufacturing Company reciting a settlement of a controversy existing between those parties, which was submitted to the trial court as the basis for the dissolution of the injunction. We denied the motions to strike at the time they were submitted and have permitted plaintiff to reply to the documents and arguments sought to be stricken. Our purpose was to give the motions more mature consideration when the cause was reached on the merits.
In reaching our decision in this case, we have not found it necessary or helpful to refer to the documents or arguments against which the motions were directed. In passing we note only that they refer to evidence which would have been proper for consideration by the trial court on hearing of the application for preliminary injunction.
The order granting preliminary injunction is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Costs to appellants.
DUNLAP, District Judge (dissenting):
I am unable to concur in the opinion of the court.
Since prior to 1895, the procedure provided for by Revised Statutes, Section 4297 (now Idaho Code § 8-411), as interpreted by this court in 1898, in the case of Raft River Land and Cattle Co. v. Langford, 6 Idaho 30, 51 P. 1027, has been the established rule of procedure followed by the courts and parties litigant in preliminary injunction matters when a hearing on the merits was desired by the party opposing the injunction.
That procedure provides for a full hearing on the merits if the required notice is given. The statute is as follows:
In the Raft River case cited above, this court construed this statute as follows:
The record in this case reflects that upon due notice the motion for preliminary injunction was heard on July 14, 1964. The notice provided for by I.C. § 8-411 was not given by appellants; no opposing affidavits were filed and appellants' answer and cross-complaint were not filed until the day of the hearing. As far as the record before the court shows, respondent had no notice whatsoever that the motion for preliminary injunction would even be opposed, or that it would be faced at the hearing with the necessity of meeting or controverting any evidence whatsoever produced by appellants. Respondent had the right to expect that the established statutory procedure honored and accepted by this court for over seventy years would be followed at the hearing and the matter determined on the affidavit filed in support of the motion for preliminary injunction.
In spite of the sorry state of the record made by appellants, they were not deprived of a hearing on the merits for the court did accept their offer of proof. This offer of proof was not made a matter of record and this court has not the slightest idea of the contents thereof. It could have had merit or it could have been utterly ridiculous. Upon some basis, which totally escapes the writer of this opinion, the majority opinion reaches the conclusion that the evidence offered would have supported the denials of the answer and the allegation of the cross-complaint. The record before the court fails to support this conclusion.
It must be assumed, in absence of anything in the record to the contrary, that the trial court in the exercise of its sound discretion considered the offer and found it without merit.
The granting or refusing of injunctive relief rests in the sound discretion of the court and the exercise of such discretion by the trial court in granting or refusing a temporary injunction will not be reversed on appeal unless a clear abuse of discretion is shown. Unity Light & Power Company v. City of Burley, 83 Idaho 285, 361 P.2d 788. No abuse of discretion is apparent from the record.
The majority opinion reaches the conclusion that the procedure established by I.C. § 8-411 is not applicable here because of the adoption of IRCP 65(a) and IRCP 52(a), and suggests that the code section is in conflict with those rules. I can find no conflict. IRCP 65(a) provides only that no preliminary injunction shall be issued without notice to the adverse party, and IRCP 52(a) pertains to the making of finding of fact and conclusion of law. Idaho Code § 8-411 provides for a full hearing on the merits if the required procedure is followed. It was not followed in this case by appellants.
The majority opinion cites the case of Sims v. Greene, 161 F.2d 87, and a number of other federal cases for the proposition that a preliminary injunction should not issue upon the pleadings and affidavits without opportunity to the adverse party to produce oral testimony. I have no quarrel with this proposition, but submit that I.C. § 8-411 provides the opportunity for the presentation of oral evidence if the established procedure is followed by giving due notice to the applicant.
The affidavit filed in support of the motion for preliminary injunction, in the absence of proof to the contrary, is sufficient under the state of the record before this court to support the trial court's order granting the temporary injunction and the order contains sufficient findings of fact and conclusions of law to satisfy the provisions of IRCP 52(a).
The order granting the preliminary injunction should be affirmed.