Baker v. Lloyd

• Decision Date: 21 January 1947
• Docket Number: 32497.
• Citation: 179 P.2d 913,198 Okla. 512,171 A.L.R. 217,1947 OK 12
• Parties: BAKER et al. v. LLOYD.
• Court: Oklahoma Supreme Court

179 P.2d 913

198 Okla. 512, 171 A.L.R. 217, 1947 OK 12

BAKER et al. v. LLOYD.

No. 32497.

Supreme Court of Oklahoma.

January 21, 1947.

Rehearing Denied April 29, 1947.

Jan 21, 1947.

Appeal from District Court, Pottawatomie County; Clyde G. Pitman Judge.

Suit by H. A. Lloyd against Ernest Baker, doing business as Baker & Company, and another to enjoin levy of executions on and sale of a stock of groceries. Judgment for plaintiff, and defendants appeal.

Affirmed.

Syllabus by the Court.

1. Injunction will lie at the instance of a plaintiff who is not the judgment debtor to prevent the levy of execution on a stock of merchandise in a going mercantile business belonging to the plaintiff, which will prevent the carrying on of the business and will mean the loss of credit and commercial ruin, the plaintiff not having a plain, speedy and adequate remedy at law. In such a case it is not necessary for the plaintiff to allege the insolvency of the defendants.

2. Record examined, and held, that the judgment of the trial court is not clearly against the weight of the evidence.

G. C Abernathy and Kenneth Abernathy, both of Shawnee, for plaintiffs in error.

Emmons Arrington, of Shawnee, Oklahoma, for defendant in error.

HURST Chief Justice.

H. A Lloyd sued the defendant, Ernest Baker, doing a wholesale mercantile business under the name of Baker & Company, and the defendant, Roy Flinchum, constable, to enjoin the levy of executions issued out of the justice court upon a stock of groceries and the sale of same. From a judgment in favor of the plaintiff the defendants appeal.

In his petition, filed June 14, 1945, and the amendment thereto, the plaintiff alleged that he owned a stock of groceries located at 418 East Main Street in the city of Shawnee; that the defendant, Baker & Company, has obtained no judgment against him; that on June 13, 1945, Baker & Company caused an execution to issue out of the justice of the peace court, which was placed in the hands of Flinchum, as constable, and that Flinchum levied upon his stock of groceries, locked the doors of the store, and started to invoice the goods; that he was compelled to make a trip from his residence in Dallas to Shawnee and to make a bond and employ an attorney; that the threatened acts are illegal and unless enjoined will work a great and irreparable injury to him, and that he has no adequate remedy at law. Plaintiff prayed that the defendants be permanently enjoined from levying upon or selling the stock of goods under the executions and that he have judgment for his attorney's fees and expenses.

On June 16, 1945, a temporary injunction was issued as prayed.

At the trial, plaintiff introduced evidence to the effect that he was the sole owner of the stock of groceries; that he advanced all the money used in opening and running the store; that before the store was opened, he advanced his brother $500 and about the time it was opened he gave him a check on a Dollas Bank for an additional $400 and that he later made a deposit for $200. His testimony was corroborated by the introduction of the original check for $400 and the deposit slip for $200. The contract between H. A. Lloyd and J. E. Lloyd, dated March 15, 1945, reciting that H. A. Lloyd was the sole owner and that J. E. Lloyd was to operate the store on a percentage basis, was introduced in evidence. Both H. A. Lloyd and J. E. Lloyd testified that H. A. Llyod was the sole owner of the business and that J. E. Lloyd was merely operating it for him. Plaintiff also introduced evidence to the effect that the judgments under which the executions were issued were rendered against J. E. Lloyd for merchandise furnished by Baker & Company to J. E. Lloyd while he was operating a grocery store known as Lloyd's Grocery, located first on Kickapoo Street and later on Highland Street, in the City of Shawnee, and that said store was closed about a year before the present suit was filed.

The defendants introduced evidence to the effect that the account for the store was first opened in the bank under the name of J. E. Lloyd, was thereafter changed to Lloyd's Food Market by J. E. Lloyd, and was later changed to Lloyd's Food Market by H. A. Lloyd, but that at all times J. E. Lloyd, as manager of the business, had authority to issue checks upon the account. H. A. Lloyd applied for ration points but was unable to get tmen and they were procured by J. E. Lloyd. The defendants also introduced evidence to the effect that, in 1944, J. E. Lloyd bought an Oldsmobile car and that on May 23, 1945, H. A. Lloyd paid the balance due on the car and the two brothers had the title of the car placed in the name of H. A. Lloyd.

In the journal entry of judgment, the court made findings of fact to the effect that H. A. Lloyd was the owner of the stock of goods levied upon; that the judgments on which executions were issued were not for merchandise sold to Lloyd's Food Market but were for merchandise sold to J. E. Lloyd while he was operating Lloyd's Grocery; that J. E. Lloyd was the manager of Lloyd's Food Market which was opened in March, 1945, and that to some extent the public understood that J. E. Lloyd was the owner; and that the threatened acts of levying upon and selling the stock of goods are illegal and would work an irreparable damage on the plaintiff and that plaintiff has no adequate remedy at law.

The defendants' argument may be disposed of under two propositions, (1) Did the petition state a cause of action for injunctive relief? and (2) Is the judgment clearly against the weight of the evidence?

1. The defendants contend that the petition does not state facts sufficient to constitute a cause of action for an injunction, for the reason that there is no allegation that the defendants were insolvent and there are no facts alleged showing that the plaintiff has no adequate remedy at law, but that the statement in the petition that the plaintiff has no adequate remedy at law is a mere conclusion. They rely upon Bracken v. Stone, 20 Okl. 613, 95 P. 236, Roma Oil Company v. Long, 68 Okl. 267, 173 P. 957, Dodson F. W. Woolworth Company, 118 Neb. 276, 224 N.W. 289, State ex rel. Stephens v. Zuck, 67 Mont. 324, 215 P. 806, and 28 Am.Jur. 459. The defendants did not raise the sufficiency of the petition in the trial court,...