No. 82-174 

IN THE 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: District Court of the Fourth Judicial District, 

In and for the County 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, 1983 
Mr. 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 

1965 Kenworth diesel truck. Defendant appeals. 

Plaintif £/respondent initiated this action by filing a 

complaint in the Superior Court of the State of Washington in and 

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 at 24 percent interest to purchase a 1965 Kenworth diesel 

truck and defendant was to grant plaintiff an oral security 

interest in the truck and repay the loan at the rate of $500 per 

month. The certificate of title was in appellant Murphy's name, 

and there was no leasehold recorded. Plaintiff also alleges he 

was to receive the greater of $350 per month or 10 percent of the 

defendant's net receipts from hauling freight with the truck. 

None of the agreement was in writing. Defendant paid plaintiff 

$1,000 and then made no other payments. 

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 in Missoula during the pendency of this action, and 

further for an order requiring defendant to appear and show cause 

why plaintiff should not obtain temporary possession 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 plaint iff take immediate temporary possess ion 
of the truck pending the outcome of this action. The District 

Court further ordered plaintiff to pay all outstanding towing and 

storage charges 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. for the 

reason that the order grants an injunction and directs the delivery, transfer or surrender of property. 

The issues raised on appeal are as 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 injunction without making findings of 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 decision of granting a preliminary injunction. 

While a preliminary injunction may be issued to protect the 

parties from damage during pendency of the suit and 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 

to the District Court. 
We covcur: 

Chief Justice 

Mr. Chief Justice Frank I. Haswell: 

I concur in the result, 

Y 

Chief Justice 

Mr. Justice Frank B. Morrison, Jr., dissenting: 

In my opinion, the District Court fashioned an equitable 

remedy which was not an injunction,gince the remedy was not 

injunctive fie court's order is not appealable, and I would 3 

therefore not entertain jurisdiction of this matter.