If the affidavits had been admitted and considered, they only recited an allegation in the complaint of the ownership and possession of real property, denied and put in issue by the answer, and unadjudicated; and the decision of the motion on that point alone would and must have been the same. The affidavits related solely to plaintiff's title and possession. (Curtis v. Sutter, 15 Cal. 259.) The matters and things enjoined were all done and performed by defendant, before the injunction was sued out and served, and being done, the defendant's insolvency creates no equitable grounds for an injunction, his whole liability, if liable at all, having already been incurred. (Gardner v. Perkins, 9 Cal. 553; Burnett v. Whitesides, 13 Cal. 156; Johnson v. Wide West Ins. Co., 22 Cal. 479; Real Del Norte Mining Co. v. Pond Co., 23 Cal. 82; Leach v. Day, 27 Cal. 643.)
JUDGES: Rhodes, J.
OPINION
RHODES, Judge
It was held in Falkinburgh v. Lucy, 35 Cal. 52, and many other cases in this Court, that when the defendant moves, on the complaint and answer, to dissolve an injunction, the answer will be treated for all the purposes of the motion as an affidavit, and that the plaintiff on the hearing of the motion is entitled to reply to the answer by affidavits. The defendant concedes the right of the plaintiff to file the two affidavits which he offered to read, but contends that the Court has the discretion to refuse the plaintiff the use of them on the hearing of the motion, unless copies were served. The statute does not require the service of copies of such affidavits; and we think it was error for the Court to deny the plaintiff the use of them on the hearing. The affidavits, however, are only in corroboration of the averments of the complaint in respect to the plaintiff's title to, and possession of, the land over which the proposed street will run; and as the averments in the complaint, of the plaintiff's title and possession, are not denied in the answer, the affidavits were unnecessary; and, therefore, the ruling of the Court excluding them worked no injury to the plaintiff.
The answer sets up a fact which, if true, would justify the Court in dissolving the injunction. It is there alleged that the defendant, who was acting as the City Marshal, had completely opened the street, removing all obstructions therefrom, two days prior to the service of the complaint and the order of injunction, and one day prior to the making of the order.
The injunction will not be retained, where it appears that the acts, the performance of which is sought to be restrained, had been performed before the order for the injunction was made or served. The plaintiff was entitled to reply to those facts by counter affidavits, if he could show that the statements of the defendant were not true; but he failed to do so.
Order affirmed.