THOMAS DAVIES, Plaintiff-in-Error, v. KEGBEH DARWEH, Defendant-in-Error.

WRIT OF ERROR TO THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

[Undated.]

1. In an action for a writ of injunction, the court may lack jurisdiction if the return after service of the writ is not in the form required by statute.

2. Issues involving the validity of title cannot be decided in injunction proceedings but should be tried in an action of law by a jury under direction of the court.

The defendant-in-error, plaintiff in the court below, filed an action against the plaintiff-in-error, defendant in the court below, in the Circuit Court of the First Judicial Circuit, Montserrado County, requesting the issuance of a writ of injunction. An injunction was granted, and the defendant brought the case to this Court for review by writ of error. Proceedings quashed for lack of jurisdiction with permission to the parties to proceed in an action at law. Costs awarded against defendant-in-error.

C. L. Simpson for plaintiff-in-error. N. H. Gibson for defendant-in-error.

MR. JUSTICE GRIGSBY delivered the opinion of the Court.

The history of this case shows that on the 13th day of July, 1929, Kegbeh Darweh, defendant-in-error, plaintiff in the court below, filed an action of injunction against the plaintiff-in-error, defendant in the court below, requesting His Honor Aaron J. George, resident Judge for the First Judicial Circuit, Montserrado County, to order the issuance of a writ of injunction directed to the plaintiff-in-error, the defendant in the court below, commanding him to abstain from operating on a certain tract of land situated in the settlement of New Georgia, County of Montserrado, to which defendant-in-error, plaintiff in the court below, asserted title. Thomas Davies, plaintiff-in-error in the above entitled cause, being dissatisfied with the several rulings and final judgment in the court below, entered against him in favor of defendant-in-error on the 8th day of October, 1931, comes forward to this Judicature by writ of error.

Count one of the assignment of errors shows that the judge of the court below ordered the issuance of a writ of injunction, which was accordingly issued on the 2oth day of July, 1929; and that from returns made by one Jacob Davies, Constable for Montserrado County, the writ of injunction was served on the loth day of July, 1929, although plaintiff-in-error denies the service of the writ of injunction on him.

An inspection of the original writ of injunction found in the records shows that the returns thereto are in words as follows :

“On the loth day of July 1929 I served the within writ of Injunction on the within named Defendant and now submit same to this court dated this 20th day of July A.D. 1929.
“[Sgd.] JACOB DAVIES
Constable, Mo. Co.”

This Court here remarks that the fundamental rule of practice and pleading is that of giving notice to the opposite parties of what is intended to be proven, as it alone enables the court to exercise jurisdiction over the parties or subject matter for litigation. The aforementioned return of Jacob Davies, Constable for Montserrado County, does not conform to the requirements of the statute specifying the form for return after service of a writ of injunction. 2 Rev. Stat. 403. Hence the court below lacked jurisdiction.

The second point raised in the assignment of errors is that on the 11th day of February, 1930, without the knowledge of plaintiff-in-error concerning the matter of land in dispute in consequence of the action of injunction, the judge of said court submitted the same to arbitration and they subsequently filed an award and the judge accordingly gave judgment in favor of defendant-in-error and a writ of possession was issued on the 24th day of September, 1931, putting defendant-in-error in possession of certain land owned by plaintiff-in-error. It appears from the complaint and answer that both the plaintiff-in-error and defendant-in-error assert ownership to the said parcel of land, two acres situated on the water front of Stockton Creek in the settlement of New Georgia in the County of Montserrado. Therefore this Court fails to see that under the circumstances in fairness to the parties an equitable relief could be granted before the question of title was first disposed of. And it was error in the judge to have ordered the issuance of a writ of possession in the absence of prima facie evidence of title to it to decide which of the parties should have instituted an action of ejectment. By injunction proceedings the court cannot decide issues involving the validity of title, such being a question which by statute is triable by jury under the direction of the court. Its object and purpose is to preserve and keep things in the same state or condition and restrain an act which if committed would be contrary to equity and good conscience. It is, however, a rule well established and always to be considered by the court that an injunction should not be granted when it will operate inequitably or contrary to the real justice of the case. This Court being without jurisdiction in the absence of the proper returns to the writ of injunction, the proceedings are therefore vacated and quashed and the parties are at liberty to proceed to law.
Cost against defendant-in-error.

Proceedings quashed.