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Firchau v. Barringer Crater Co.

Supreme Court of Arizona

September 30, 1959

Albert J. FIRCHAU, Appellant,
v.
BARRINGER CRATER CO., a corporation, Appellee.

[86 Ariz. 216] Wilson, Compton & Wilson, Flagsataff, and Lewelling & Gies, Salem, for appellant.

Mangum & Christensen, Flagstaff, for appellee.

UDALL, Justice.

This is an appeal by defendant Albert J. Frichau from an order of the lower court denying a motion to dissolve the temporary restraining order theretofore issued and the granting of an injunction pendente lite to plaintiff-appellee. We shall hereafter refer to the parties as

Page 487

they were designated in the trial court, i. e., plaintiff and defendant.

The facts giving rise to the appeal are as follows: The Barringer Crater Company, a corporation, as plaintiff, on October 23, 1957, brought an action against defendant-appellant, Albert J. Firchau, to quiet its title to:

'* * * sections 13 and 24, Township 19 North, Range 12 1/2 East, G. & S. R. B. & M., Coconino County, Arizona, together with the placer mining claims designated by the surveyor general of the United States as Lot No. 1806, known as the Venus, Mars, Jupiter, and Saturn Placer Mining Claims.'

Also, injunctive relief and damages were sought against defendant. On the same [86 Ariz. 217] day the complaint was filed, the plaintiff--without notice to defendant--obtained from the court a temporary restraining order, and an order to show cause on November 1, 1957, why a preliminary injunction should not be ordered pendente lite. A bond of $1,000 was exacted and later furnished by plaintiff. From the court's minutes, dated November 1, 1957, it appears that by stipulation of counsel the hearing on temporary restraining order and order to show cause was ordered continued until November 18, 1957, and the temporary restraining order was directed, in the interim, to remain in full force and effect.

On November 18, 1957, defendant filed his answer wherein he claimed to be in lawful possession of the premises under an express contract in writing for the working, mining and development of said property; and by a seaprate defense and counterclaim he asked for a dissolution of the restraining order and for damages, puls attorney's fees. On the last mentioned date--with all parties represented--a daylong hearing was had on the temporary restraining order and the order to show cause. A half dozen witnesses testified, and numerous decuments were admitted in evidence as exhibits, whereupon the court took the matter under advisement and asked for briefs. Thereafter, on December 24, 1957, there was filed with the clerk a letter from the presiding judge directing the entry of the following order, viz.:

'It is ordered that the injunction now in force be continued, in conformity with the prayer of the complaint, and the Motion to Dissolve said injunction is hereby denied.'

Said order was properly entered and docketed by the clerk. A motion for new trial was filed and denied by operation of law. This appeal, under A.R.S. section 12-2101, subd. F, par. 2, followed.

There are but two assignments of error, the first of which reads:

'The court erred in denying defendants' motion to disslove the temporary restraining order and entering Judgment in favor of plaintiff for the reason and upon the ground that the acts restrained involved the working and mining of a mining claim and was issued without notice to the defendants contrary to the provisions of A.R.S. section 12-1807, and said proceedings were therefore void.'

The section of the code above referred to is as follows:

'An injunction against the working and mining of a lode or mining claim shall not be granted without notice to the opposite party, and no ppreliminary injunction or temporary restraining order shall be issued to prevent the working or mining pending [86 Ariz. 218] hearing of the application for the injunction.' (Sec. 12-1807)

Though this unique section, unchanged in phraseology, has been a part of our statutory law at least since the adoption of the Civil Code, revised Statutes, 1913 (Section 1465)--prior thereto it appeared in substance as Section 2746, R.S. '01--it has never heretofore been interpreted by this court. Its source or purpose and ...


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