Page:North Dakota Reports (vol. 2).pdf/240

 Pr. 139, 140. In this case it would seem quite unnecessary, on plaintiff's theory of the case, to resort to the appointment of a receiver in any event. The complaint is framed upon the theory that the plaintiffs, upon the facts set out, can invoke a preliminary as well as a permanent injunction restraining defendant from tilling or interfering with the land in question. This is the relief specifically demanded in the complaint, and plaintiffs applied for and obtained a preliminary injunctional order, which was served upon defendant long before the receiver was applied for, to-wit, in 1890. This order has not been appealed from, and, as modified, it in terms forbade the defendant from tilling the land or planting any crop thereon. If the plaintiff's theory of the case is sound—and the district court seems to have adopted it in issuing the preliminary injunction—then such order, not having been appealed from, could have been enforced. If the order had been enforced, the crop placed in the hands of the receiver could not have been planted nor harvested by defendant, and no receiver would have been necessary. Why the injunctional order was not enforced does not appear in the record, but it is quite clear to our minds that, if such an order could not be enforced under the complaint, the more drastic remedy of a receiver would be improper on the same state of facts. Much less was it proper, under such circumstances, to deprive defendant of the possession of the crops without notice or a hearing, when defendant, who was living on the land, coald have been notified of the application. In Verplanck v. Mercantile Ins. Co., 2 Paige, 450, Chancellor WatWORTH says: “In every case where the court is asked to deprive the defendant of the possession of his property without a hearing, or an opportunity to oppose the application, the particular facts and circumstances which render such summary proceedings proper should be set forth in the bill or petition upon which such application is founded.” See, also, French v. Gifford, 30 Iowa, 148. The affidavit upon which the summary order was made in this case failed to state any facts or circumstances tending to show that summary action without notice was necessary. The statement that defendant was liable to