MUTUAL OIL CO. et al. v. EMPIRE PETROLEUM CO.

MUTUAL OIL CO. et al. v. EMPIRE PETROLEUM CO. (Circuit Court of Appeals, Sixth Circuit. May 5, 1925.) No. 4322. 1. Courts <$=>274 — District Court held to have jurisdiction of cause of action against'foreign corporation and of parties. Where verified complaint, copy of contract annexed thereto, and admissions and allegations of answer showed that defendant was Michigan corporation doing business in Ohio, and corporation was legally served with summons in Northern district of Ohio, District Court of such district had jurisdiction of cause and of parties. 2. Appeal and error @=>954(1) — When order granting or denying preliminary injunction reversed stated-. Order granting or denying preliminary injunction will not be reversed, unless it clearly appears that court exercised its discretion on wholly wrong conception of facts or law, or that grant or refusal of preliminary injunction is contrary to some rule of equity, or is result of improvident exercise of judicial discretion. 3. Injunction <$=>136(2) — When temporary Injunction or restraining order requiring affirmative action,will issue stated, especially as to taking wrongful possession of property. Temporary injunction or restraining order requiring affirmative action will issue on preliminary hearing, where facts show that such relief is necessary to protect complainant’s rights, especially where defendant has taken forcible, wrongful, or unlawful possession of property in dispute, or suddenly or secretly changed existing status for purpose of securing an unfair advantage, or of forestalling order restraining such action. Appeal from the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Kil-lits, Judge. Suit in equity by the Empire Petroleum Company against the Mutual Oil Company and others. From an order and decree granting a preliminary injunction, and refusing to modify same, defendants appeal. Affirmed and remanded. C. A. Seiders, of Toledo, Ohio (Charles L. Robertson, of Adrian, Mich., on the brief ), for appellants. Harold W. Fraser, of Toledo, Ohio (Fraser, Hiett & Wall, of Toledo, Ohio, on the brief), for appellee.- Before DONAHUE, MOORMAN and KNAPPEN, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. It clearly appears from the verified bill of complaint, the copy of the contract attached thereto as an exhibit, and the admissions and averments in the answer that the appellant, the Mutual Oil Company, is and was at the time this action was commenced a Michigan corporation doing business in Ohio. People’s Tobacco Co., Ltd. v. American Tobacco Co., 246 U. S. 79, 38 S. Ct. 233, 62 L. Ed. 587, Ann. Cas. 1918C, 537; Philadelphia & Reading Railway Co. v. McKibbin, 243 U. S. 265, 37 S. Ct. 280, 61 L. Ed. 710. It further appears from the record that it was legally served with summons in the Northern district of Ohio, Western division. St. Louis Southwestern Ry. Co. v. Alexander, 227 U. S. 218, 33 S. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, 77. It necessarily follows that the District Court had jurisdiction of the cause and parties. An order granting or denying a preliminary injunction will not be reversed by an appellate court, unless it clearly appears that the court has exercised the discretion vested in it on a wholly wrong conception of the facts or the law of the case, or that the granting or refusal to grant a preliminary injunction is contrary to some rule of equity or the result of improvident exercise of judicial discretion. Meccano, Ltd., v. Wanamaker, 253 U. S. 136, 141, 40 S. Ct. 463, 64 L. Ed. 822; Blackmore v. Collins et al. (C. C. A. 6) 290 F. 204; Rousso v. First Nat. Bank of Detroit (C. C. A. 6) 287 F. 273, and cases there cited. A temporary injunction or restraining order, mandatory in effect and requiring affirmative action, will issue upon a preliminary hearing, where it appears from the facts proven or admitted that such relief is necessary for the protection of complainant’s rights, and particularly where it appears that the defendant has taken forcible wrongful, or unlawful possession of the property in dispute, or suddenly and secretly changed an existing status for the purpose of securing an unfair advantage, or forestalling an order of court restraining suqh action. The facts of this ease, as they were made to appear by the verified bill of complaint and the admission in the answer, fully sustain the order and decree of the District Court granting this injunction and its refusal to modify the same. Hay et al. v. Association of Collegiate Alumnæ, 273 F. 351, 352, 353, 50 App. D. C. 387, and cases there-cited; Love et al. v. A., T. & S. F. Ry. Co., 185 F. 321, 333, 107 C. C. A. 403; Western Union Telegraph Company et al. v. Postal Telegraph Co., 217 F. 533, 539, 133 C. C. A. 385; Bishop’s Equity, § 400. Affirmed and remanded.