(concurring).
Congress has abolished the distinction between actions at law and suits in equity in Alaska, and has enacted a statute authorizing, pending an action, the provisional remedy of injunction upon certain prescribed conditions. The question here is: What is the proper construction of that statute? It provides for the issuance of an injunction pendente lite in two distinct classes of cases: First, cases where it appears by the complaint that the plaintiff is entitled to such relief; and, second, in any case when it appears by affidavit that a defendant is doing, or threatening to do, certain designated things, which would tend to render the judgment ineffectual. The language of the statute is so plain that discussion of its meaning would seem to be unnecessary. In the second class of cases providing for the remedy during the pendency of the action, there is no mention of the complaint or of any additional or supplemental pleading. The statute does not say that it shall appear from a complaint that the plaintiff is entitled to the temporary relief. It declares that it shall be granted on affidavits in any action where the specified injury is threatened. The fact should not be lost sight of that the life of the injunction so authorized in the second class of cases is to end with the judgment. It is a provisional remedy only. It is not in a strict sense a preliminary injunction — that is to say, it is not preliminary to a permanent injunction — and the fundamental rule that a permanent injunction must rest upon proper pleading in a bill or complaint has no application. Without such a statutory provision the remedy could not, of course, be accorded in an action at law. But there is nothing anomalous in such legislation. Before any of the codes were adopted in the states, there was in force in New York, under the Revised Statutes of that state, a provision that in an action of ejectment the court might, upon affidavit, enjoin waste by the defendant pending the action. It seems never to have oc*172curred to a court to hold, .or to counsel practicing under that statute to suggest, that, in order to avail himself of »the protection of the remedy so afforded, the plaintiff must insert in the declaration in ejectment any averment other than those required by the rule of common-law pleading. The temporary injunction was obtained upon a declaration and upon an affidavit setting forth the facts to show the propriety of the restraining order. Bush v. Phillips, 3 Wend.(N.Y.) 428; People v. Alberty, 11 Wend.(N.Y.) 161. A similar practice has obtained in some of the states where, under a Code system, provision has been made for the issuance of a temporary injunction in actions at law. Thus, in Riemer v. Johnke, 37 Wis. 258, it was held that a plaintiff in ejectment may be entitled, as a provisional remedy, to an order restraining trespass or waste during the pendency of the action. In College Corner et al. v. Moss et al., 77 Ind. 139, which was an action at law, the court said: “The statute makes no provision for a temporary injunction when no cause therefor is shown in the complaint, except where the defendant threatens or is about to remove or dispose of his property. In such case it seems that where the facts are presented by affidavit, after the action has been commenced, an injunction may be issued to prevent the threatened injury.”
I am unable to see how the decisions in McHenry v. Jewett, 90 N.Y. 58, Heine v. Rohner (Sup.) 51 N.Y.S. 427, and Goldman v. Corn (Sup.) 97 N.Y.S. 926, have any relation to the question presented in this case. They are all cases arising under and controlled by section 603 of the Code of Civil Procedure of New York. They were all equitable suits; two of them being suits to obtain permanent injunction, and the other a suit for a decree of specific performance. Section 603 provides: “Where it appears from the complaint that the plaintiff demands and is entitled to a judgment against the defendant restraining the commission or continuance of an act, the commission or continuance of which during the pendency of the action would produce injury to the plaintiff, an injunction order may be granted to restrain. The case provided for in this section is described in this act as a case where the right to an injunction depends upon the nature of the action.”
*173The decisions in those cases had no bearing whatever upon section 604, which makes provision, as does the second clause of the Alaskan statute, for a temporary injunction upon affidavits showing that the defendant threatens or is. about to procure or suffer to be done an act during the pendency of the action “in violation of the plaintiff’s right respecting the subject of the action and intending to render the judgment ineffectual.”
It seems to me, from a consideration of the statutes and the decisions that under the provision of the Alaskan Code, it is unnecessary, and in fact it would be improper pleadingj to insert in the complaint, in a case which is in its nature an action at law, the particular facts on which the plaintiff predicates his application for a temporary injunction, or even a prayer for such relief; but if, indeed, it should be held otherwise, I am of the opinion that the court below committed no error in granting the injunction, for a sufficient basis for it was set forth in the affidavit of one of the plaintiffs in the court below. It was an affidavit containing the title of the court and the cause, and it alleged all of the facts necessary to show that the plaintiffs were entitled to injunction pending the action. It further alleged that the plaintiffs had no plain, speedy, or adequate remedy at law, and it prayed that an injunction be issued restraining and enjoining the defendants, and each of them, their servants, etc., from mining or sluicing within the described premises. In Morgan v. Quackenbush, 22 Barb. (N.Y.) 72, it was held that, under the rule of chancery practice that an injunction can only be granted when it appears by the complaint that the plaintiff is entitled to the relief demanded, an injunction pendente lite might be granted in the absence of such averment in a complaint, upon an affidavit which contained all the requisites of a complaint. Of the affidavit in that case, the court said: “It contains the title of the cause. It specifies the name of the court and the county where the plaintiff proposes to try the action, and the names of the parties. It then states the facts upon which the plaintiff relies to constitute his cause of action, and demands the relief to which the plaintiff supposes himself entitled. This makes a complaint. * * * If a paper contains, as this does, everything essential to constitute a complaint, the *174form in which it is presented furnishes no sufficient ground of objection.”
ROSS, Circuit Judge, dissenting.