Christopher v. Condogeorge
Before: Chipman
Synopsis
.Injunction—Appeal from Modifying Order—Review.—Upon an appeal by the plaintiffs from an order modifying an injunction, no error of the court in not directly passing upon a pending motion of the defendant to reopen the hearing of a motion to dissolve the injunction can he reviewed; and no fact hearing upon such motion, or upon the refusal of the court to dissolve the injunction, can be considered where it does not clearly appear that the defendant’s motion to dissolve the injunction was based upon the same pleadings and affidavits considered upon the order modifying the injunction.
Id. —Answer Treated as Affidavit—Verification—“Information and Belief.”—A verified answer denying the allegations and substantial equities of the complaint may he treated as an affidavit in making an order modifying an injunction granted upon a verified complaint, and if in the body of the answer no fact is stated upon information and belief the verification is to be regarded as a positive affirmance of the truth of the allegations of the answer, notwithstanding the use of the form of verification containing the usual words, “except as to the matters and things therein stated on his information and belief,” etc. 2d.—Modification of Injunction—Discretion of Court.—The modification of a preliminary injunction is a matter in the sound discretion of the trial court, and unless this discretion appears to have been abused, this court will not interfere.
CHIPMAN, C.
Appeal from an order modifying an injunction. Plaintiffs, doing business as copartners in Los Angeles, being the owners of certain personal property consisting of various articles, including a soda fountain, used in outfitting a shop in which to sell confections, ice cream, soda, etc., leased the
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property to defendant by a written instrument dated August 31, 1898. On November 23, 1898, plaintiffs filed their verified complaint, alleging the execution of the lease, possession of defendant under the same, and that “defendant agreed to conduct with the use of said property an ice cream parlor and soda fountain in the town of Santa Monica, and to handle and serve ice cream manufactured by said plaintiffs, and no other, for the period mentioned in said lease.” The lease set out in the complaint makes no mention of such agreement and is silent as to any restriction as to the place where the property may be taken and used. It provided for a rental of seven hundred and twenty-five dollars for the whole term, which expired August 1, 1899, of which three hundred and fifty dollars had been paid and no more; payments were to be made by installments, to wit, twenty-five dollars cash in hand, three hundred and twenty-five dollars sixty days from date of lease, and three hundred and seventy-five dollars August 1, 1899, and upon the last payment ■being made, and upon the further payment of one dollar, the lessee was to become the owner of the property. The complaint alleged that defendant threatened to remove said property to the Hawaiian Islands; that injury to the soda fountain would thus ensue by the corrosion of its parts through the action of salt air; that waste and irreparable injury would follow; that defendant had refused to further conduct the business in Santa Monica and was insolvent; and that defendant paid three hundred and fifty dollars on account of said lease and no more. As-a further cause of action it is alleged that defendant threatens to store the said property in a warehouse for eight months, paying no storage thereon, and that such expense will fall as a charge upon plaintiffs in order to get possession; that such treatment of the property, by storage, will produce waste and irreparable injury of the same b-v keeping the soda fountain out of use. The prayer is for an injunction restraining defendant from removing said goods from the t-oivn of Santa Monica; also restraining the storage of the same and requiring defendant to-return the property to plaintiffs, and for general relief. The court, upon issuance of summons on the day complaint was filed, made its preliminary
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