Kredo v. Phelps

COOPER, C.

Appeal from judgment in favor of plaintiff. Appellants contend that the complaint does not state facts sufficient to constitute a cause of action, and that the findings are outside of the issues stated in the pleadings. Both contentions will have to be sustained.

The substance of the complaint is; That at all times therein named the plaintiff “was in the quiet and peaceable enjoyment of a certain two rooms in a certain house known and designated as No." 937 Post Street in the city and county of San Francisco. . . . That while plaintiff was in the possession of said rooms, the said defendants wrongfully and unlawfully

[527]

threatened and do now threaten to oust plaintiff therefrom. . . . That plaintiff is informed and believes and therefore alleges that the said defendants threatened to prevent the said plaintiff from entering said premises by locking the- doors of said house and by barricading the same so that it will be impossible for the said plaintiff to enter said rooms, and to unlawfully and wrongfully use force and violence against the said plaintiff if he shall attempt to enter said premises, and plaintiff further alleges, upon his information and belief, that the said defendants threatened to cause his said furniture to be unlawfully and wrongfully destroyed and removed from said premises and otherwise injure said plaintiff and his said property in violation of said lease and the terms thereof. That plaintiff believes that said defendants will commit said acts hereinbefore set forth unless they are restrained by this court.”

The complaint concludes with a prayer for an injunction restraining the threatened acts and restraining the defendants “from interfering with the plaintiff in the quiet and peaceable enjoyment of said premises.” It is evident that the object of the complaint is to enjoin the threatened ouster of plaintiff from his rooms and the threatened destruction of his furniture. It is alleged that defendants threatened to oust plaintiff from the said rooms and to cause his furniture to be destroyed and removed from the said premises. It is not even alleged that defendants will, unless restrained by the court, commit the threatened acts, but it is alleged that plaintiff believes “that defendants will commit said acts.” If we regard the “two certain rooms” as being real estate, and sufficiently described, yet it is alleged that plaintiff is in the quiet and peaceable possession of them. Courts will not issue an injunction to prevent a threatened ouster of one in the possession of real estate when that is the main question before the court. If the party should be ousted, he would have his remedy at law, but the aid of a court of equity cannot be invoked to prevent a mere threatened ouster. If such were the rule the time of the courts would be taken up in the investigation of imaginary wrongs and idle threats. And so of the threatened destruction of plaintiff’s furniture. We know of no case in which the court has enjoined the threatened injury or removal of ordinary personal property simply upon