Bailey v. Wade

• Decision Date: 10 January 1887
• Parties: N. C. BAILEY, Respondent, v. W. W. WADE, Appellant.
• Court: Kansas Court of Appeals

24 Mo.App. 186

N. C. BAILEY, Respondent, v. W. W. WADE, Appellant.

Court of Appeals of Missouri, Kansas City.

January 10, 1887

APPEAL from Hickory Circuit Court, HON. W. I. WALLACE, Judge.

Reversed and remanded with directions.

The case and facts are stated in the opinion.

S. A WARDAN and J. H. DAVIDSON, for the appellant.

The petition does not state facts sufficient to constitute a cause of action, nor justify the judgment appealed from, in this: For anything therein appearing, there is a full and adequate remedy at law by an action against defendant and his securities on his official bond; and the injunction should therefore, be dissolved. Stockton v. Ransom Adm'r, 60 Mo. 535; James v. Dixon, 20 Mo. 79; Burgess v. Kastleman, 41 Mo. 480; Weigel v. Walsh, 45 Mo. 560; Anderson v. St. Louis, 47 Mo. 474; Echelkamp v. Schrader, 45 Mo. 505; Damschroeder v. Thias, 51 Mo. 100; sect. 2722, Rev. Stat.

WM. R. HUDSON, for the respondent.

I. The bill of exceptions must show the filing of the motion for a new trial, and the date thereof, and also that said motion was filed within four days after trial. Demske v. Hunter, 23 Mo.App. 466.

II. The appellant was a trespasser on the rights and property of the respondent. Muelrath v. Roemheld, 3 Mo.App. 564; Waite v. Mathews, S.Ct. Mich. April, 1883; Cent. Law J. Dig. Cases, July 6, 1883; Smyth on Homesteads and Exemptions, sects. 547 to 551 inclusive; Conklin v. Barada, 57 Mo. 562.

III. The demurrer to the bill was properly overruled. It was not necessary to allege the insolvency of the constable or his bondsmen. McPike v. West, 71 Mo. 179. It was not necessary to allege in the bill that the damages would be irreparable. Rev. Stat., sect. 2722. Neither of these is necessary to maintain injunction. Bank v. Kercheval, 65 Mo. 682; Turner v. Stewart, 78 Mo. 480; Weigel v. Walsh, 45 Mo. 560. It is enough that a legal wrong was about to be done, the property was advertised and was about to be sold, which was ex empt, and which had been claimed and demanded. Rev. Stat., sect. 2722; Turner v. Stewart, supra.

IV. The only adequate remedy in this case is by injunction. Where public officers assume powers over property not given them by law, they are no longer considered as acting under authority of their commissions, but are treated as persons dealing with property without legal authority. Story's Eq. Juris., sect. 955; Nichols v. Claiborne, 39 Tex. 363; Vogler v. Montgomery, 54 Mo. 577; Damschroeder v. Thias, 51 Mo. 100.

PHILIPS P. J.

The defendant, as constable, levied an execution, from a justice's court, on a horse, as the property of the respondent. The respondent, plaintiff below, claimed the horse as exempt from execution, and so notified the defendant, constable. On the refusal of the defendant to release the horse, the plaintiff instituted the present action of injunction in the circuit court to enjoin the sale. The petition alleges the facts aforesaid, and charges that the plaintiff, in the event of such sale, would be without adequate remedy at law, and would sustain great damage. On the hearing of this cause the facts concerning the judgment, the issue of the execution, and levy were established. The plaintiff also introduced evidence tending to show that the horse was exempt from execution, and that he made demand of the constable for his release, and that the constable threatened to proceed with the sale.

The defendant made proof of his solvency, as well as of the sureties on his official bond; and that the plaintiff in the trial before the justice of the peace in which the judgment was had swore that he did not own the horse. The court rendered judgment making the injunction perpetual. From this judgment the defendant appealed.

I. The single question for determination on this appeal is, will the remedy by injunction lie? According to the well established rule in chancery practice, to authorize a resort to injunction as a remedy for trespass the bill should show and aver that the threatened injury is so irreparable in its character as not to admit of adequate and ready compensation in an action at law for damages, or that the trespasser was so insolvent as to render a money judgment against him unavailing. High on Inj., sects. 697, 701, 717. There are exceptions to this rule, as where a resort to an action at law would likely be productive of a multiplicity of suits, or where the personal property is pretium affectionis.

Our Supreme Court has repeatedly recognized this rule. In James et al. v. Dixon (20 Mo. 80), the court held that an injunction would not lie to restrain a trespass unless the trespasser was insolvent, or the injury was irreparable. Scott, J., said: " An injunction is not granted to restrain a mere trespass, where the injury is not irreparable and destructive to the plaintiff's estate; but is susceptible of perfect pecuniary compensation, and for which a party can obtain adequate satisfaction in the ordinary course of law." This was followed in Burgess v. Kastleman (41 Mo. 480), in which Wagner, J., observed: " Where a party has a remedy at law, he cannot come into equity unless, from circumstances not within his control, he could not avail himself of his legal remedy. An injunction will not be granted where the injury is susceptible of perfect pecuniary compensation, and for which a party can obtain adequate satisfaction in the ordinary course of law. That full compensation can be had at law, is the great rule for withholding the strong arm of the chancellor. The party must be insolvent, so that an action at law would be unavailing, or the injury so irreparable in its nature that the plaintiff would be remediless without the interposition of the injunctive process." These cases were followed in Echelkamp v. Schrader (45 Mo. 505), and in Weigel v. Walsh (Ib. 560).

There is neither any allegation of insolvency in the bill, nor proof of it at the hearing, nor of irreparable injury. Why then has not the plaintiff an adequate and complete remedy at law? The property being exempt from seizure and sale under execution for the debts of the relator, the constable, especially after notification by the defendant in execution, was a trespasser, and he and the sureties on his official bond would be liable as for a conversion. Miller v. Wall, 27 Mo. 440; Megehe v. Draper, 21 Mo. 510; State ex rel. v. Barada, 57 Mo. 562; State ex rel. v. Ketzeborn, 2 Mo.App. 351; State v. Taylor, 3 Mo.App. 351; State v. Romer, 44 Mo. 99. No title would pass by such sale. The relator could replevin it. Freeman on Ex., 215; Wells on Replevin, 268; Rowell v. Klein, 44 Ind. 296.

II. It is insisted, however, that these rules of chancery...