Attorney Grievance Commission v. Englehart

<p>Error to the District Court, Carbon 'County; Hon. David H. Craig, Judge.</p> <p>The material facts are stated in the opinion.</p> <p>Although the statute implies that an injunction may be granted without notice, we submit that the practice of the District Court in granting an injunction or any other extraordinary remedy on an ex parte hearing should be discouraged. Neither the letter nor the spirit of the statute intends that an injunction may be granted without notice on such a doubtful and uncertain showing as made in the petition in this case. The power should not be so exercised, except to prevent injuries that are imminent and irreparable, and certainly the court should not interfere where the plaintiff’s right is doubtful or where an action at law .or in equity prosecuted in the ordinary mode will afford adequate redress. In the case at bar there is no allegation that injury is likely to occur before a hearing can be had, nor that the security will be insufficient if the alleged fixtures be removed. The allegation that the articles mentioned in the petition are a part of the realty is a mere conclusion. It sufficiently appears from the petition that.they were at one time at least personal property, and no showing is made as to the manner in which they became a part of the realty. It does not appear by the petition or the affidavits* that these articles were specially designed for the real property mentioned in the mortgage. It appears affirmatively from the petition that the articles were only necessary to carry on a business theretofore conducted on the premises, from which it may be assumed that they are not necessary for any other business that might be conducted on the premises. If that be true then no argument would seem to be necessary on the point that the articles retained their character as personalty and became in no way subject to the mortgage. (Fortman v. Goepper, 14 O. St. 567; Wagner v. R. R. Co., 22 O. St. 577.) It is therefore submitted that