No. 82-174 INTHE SUPREME COURT OF THE STATE OF MONTANA

ALVIN R. ENSLEY, Plaintiff and Respondent,

MICHAEL MURPHY, a/k/a PHILLIP ERNEST KRINER, Defendant and Appellant.
Appeal from: DistrictCourt of the Fourth Judicial District, Inand fortheCounty of Missoula Honorable John Henson, Judge presiding. Counsel of Record: For Appellant: Tipp, Hoven, Skjelset & Frizzell, Missoula, Montana Thomas Frizzell, Missoula, Montana For Respondent: Theodore J. Cowan, Missoula, Montana

Submitted on briefs: November 5,,L982 Decided: February 10, 1983Mr. Justice John Conway Harrison delivered the Opinion of the Court. Following an order to show cause hearing, the District Court ordered that plaintiff take temporary possession of defendant's 1965Kenworth diesel truck. Defendant appeals. Plaintif£/respondent initiated this action by filing a complaint inthe SuperiorCourt of the Stateof Washington inand for the County of King, alleging breach of contract, replevin, misrepresentation and 

### tort of outrage. The complaint 

### arose out of an oral agreement between plaintiff and defendant in Washington in June 1981, whereby plaintiff loaned defendant $15,000 at24 percent interesttopurchase a 1965Kenworth diesel truck and defendant 

### was 

### to grant plaintiff an oral security interest in the truck and repay the loan 

### at the rate of $500per month. The certificateof 

### titlewas in appellantMurphy's name, and there 

### was no leasehold recorded. Plaintiff also alleges he


### was toreceive the greaterof $350permonth 

### or 10percent of the defendant's net receipts from hauling freight with the truck. None of the agreement was inwriting. Defendant paid plaintiff $1,000 and thenmade no otherpayments. When plaintiff located defendant and defendant's truck in Missoula, Montana, plaintiff filed a complaint in the Fourth Judicial District, in and for the County of Missoula, alleging breach of contract, replevin, misrepresentation and tort of outrage. This complaint 

### was filed on January 20, 1982. Along with the complaint, plaintiff filed a motion requiring defendant to appear and show cause why an injunction pendente lite should not be issued restraining defendant from removing the truck from its location inMissoula during the pendency of this action, and further foranorder requiring defendant to appearand show cause why plaintiff should not obtaintemporarypossession of the truck pending the outcome of this action. Following the show cause hearing on February 17, 1982, and February 22, 1982, the District Court ordered the plaintiff take immediate temporary possessionof the truck pending the outcome of this action. The District Court furtherordered plaintiff to pay alloutstanding towing and storagecharges on the truck and to post a $16,000 bond to insure the return of the truck in the event of an adverse ruling. The District Court allowed plaintiff 

### to operate the truck to mitigate his damages and 

### to apply $500 of any profits to defendants' outstanding obligation and to pay any amounts over $500 to the clerk of court to be held pending the outcome of this action. Defendant appeals from the District Court's order claiming the order is appealable pursuant to Rule l(b),M.R.App.Civ.P. forthe
reason that the order grants an injunction and directs the delivery, transferor surrender of property. The issues raised on appeal areas follows: 1. Whether the District Court abused its discretion in issuing a preliminary injunction contrary to Montana law. 2. Whether the District Court erred by entering a preliminary injunctionwithoutmaking findingsof fact

### or conclusions of 

### law or giving any statement of its reasons for granting the injunction. Although two issues

### were raised by appellant, the 

### case can be disposed of by answering the first issue by vacating the trial court's decisionof granting a preliminary injunction. While a preliminary injunction may be issued to protect the parties from damage during pendency of the suitand maintain the status quo pending final determination of the cause on the 

### merits, Porter v. K & S Partnership (1981), -- Mont

# . ,627 P.2d 836, here the court's order failed to preserve the status quo. It determined substantive property rights and did not follow our statutes and rules directing the court to issue findings of fact and conclusions of law at the time he issued the injunction. See 27-19-201(4), MCA, see Rule 52(a)

### ,M.R.Civ.P. The preliminary injunction is vacated and the cause returned 

### totheDistrict Court.We covcur:

Chief Justice

Mr. Chief JusticeFrank I. Haswell: I concur inthe result,

Y Chief Justice

Mr. JusticeFrank B. Morrison, Jr., dissenting: Inmy opinion, theDistrictCourt fashioned anequitable remedy which was not an injunction,gince theremedy was not injunctive fie court's order isnot appealable, and I would 

### 3 therefore not entertainjurisdiction of thismatter.