Company v. Sleeper

• Decision Date: 11 February 1905
• Docket Number: 13,963
• Citation: 79 P. 648,70 Kan. 806
• Parties: THE GALE MANUFACTURING COMPANY et al. v. LYMAN SLEEPER et al
• Court: Kansas Supreme Court

79 P. 648

70 Kan. 806

THE GALE MANUFACTURING COMPANY et al. v. LYMAN SLEEPER et al

No. 13,963

Supreme Court of Kansas

February 11, 1905

Decided January, 1905.

Error from Allen district court; A. H. CAMPBELL, judge pro tem.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

INJUNCTION--Right to Sue. The privilege of one whose real property is levied upon under an execution against another to make a motion in the case in which the execution was issued to release the property from such levy does not afford him such an adequate remedy at law as to cut off any right he would otherwise have to maintain injunction against the sale of the property.

Thompson & Thompson, for plaintiffs in error.

McClain & Apt, for defendants in error.

MASON J. All the Justices concurring.

OPINION

MASON, J.

The Gale Manufacturing Company sued a firm composed of S. T. Breckenridge and Harry Sleeper in justice's court upon an account. During the pendency of the action Breckenridge conveyed a tract of land to Lyman Sleeper, the father of Harry Sleeper. The company, having recovered judgment, filed a transcript in the district court and caused an execution to be levied upon this land, upon the theory that such deed was void because made in fraud of creditors. Lyman Sleeper then began an action of injunction against the company, in which he obtained a final judgment enjoining the sale of the land under the execution. The Gale company prosecutes error.

Plaintiff in error contends that a demurrer to the petition for injunction should have been sustained upon the ground that the plaintiff had an adequate remedy at law in that he could have made a motion in the case in which the execution was issued to release the land from the levy. The case of Crist v. Cosby et al., 11 Okla. 635, 69 P. 885 cited in support of the contention, contains expressions apparently sustaining this view. All that was there actually decided, however, was that a defendant wrongfully served with summons must contest the sufficiency of the service, if at all, in that action, and not by an independent suit after judgment to restrain its enforcement. The remedy open to one whose property is seized upon process against another, by a motion to be made in a case to which he was not a party, is inadequate for this reason, if for no other, that through such a proceeding no final settlement of the matter in controversy can be had. "A decision either...