First Nat. Bank of Ft. Wayne v. Savin

• Decision Date: 14 March 1911
• Docket Number: No. 6,892.,6,892.
• Citation: 94 N.E. 347,47 Ind.App. 266
• Parties: FIRST NAT. BANK OF FT. WAYNE v. SAVIN.
• Court: Indiana Appellate Court

47 Ind.App. 266

94 N.E. 347

FIRST NAT. BANK OF FT. WAYNE

v.SAVIN.

No. 6,892.

Appellate Court of Indiana, Division No. 1.

March 14, 1911.

Appeal from Superior Court, Allen County; J. H. Rose, Special Judge.

Action by Sarah J. Savin against the First National Bank of Ft. Wayne and another. From a judgment for plaintiff, defendant named appeals. Affirmed.Vesey & Vesey, for appellant. Barrett & Morris and S. R. Alden, for appellee.

HOTTEL, J.

This was a suit brought by the appellee against appellant and Jesse Grice, as sheriff, to temporarily restrain and permanently enjoin such sheriff from selling certain real estate in the complaint described, upon an execution issued upon a judgment rendered in favor of appellant against the Edmund H. Coombs Company, a mercantile corporation, as principal, and Edmund H. Coombs, as surety.

The complaint alleges in substance: That the appellee in the fall of 1905 entered into a contract with Ethel H. Coombs and her husband, Edmund H. Coombs, for the purchase of the real estate described in the complaint, and that at that time said Coombs and Coombs were husband and wife, and then owned and held said property as tenants by the entirety, and that they had so owned and held the same since January 2, 1903; that appellee, by reason of such contract of purchase, had, at considerable trouble and expense to herself, procured the cancellation of a lease which she held on other property, and she, with the family of her daughter, had gone into the possession of the premises so contracted for and described in her complaint, and has since occupied the same under said agreement or contract of purchase; that after the making of said agreement, but before the delivery of the deeds, it was reported to appellee that appellant was publicly making some claim of some right or interest in said real estate, and had brought some suit against the vendors to set aside the conveyance to them and establish the claim of said bank, and by consent of said vendors appellee withheld the payment of the purchase price of said premises, and the vendors placed their warranty deed to appellee and her daughter for said premises in escrow, with the understanding that such payment be withheld and the delivery of the deed delayed until the said vendors of said real estate and appellant concluded their litigation; that appellant afterwards dismissed said suit against said vendors, brought to set aside their said deed, and brought suit against said Edmund H. Coombs, as surety, and a mercantile corporation named Edmund H. Coombs Company, as principal, on notes executed in 1905, on which suit a judgment was recovered on September 1, 1906, in the superior court of Allen county, for $9,634.36 against said company, as principal, and said Edmund Coombs, as surety; that appellant caused an execution to issue on said judgment to the sheriff Grice, and that the sheriff, at the direction of appellant, levied on the real estate described in the complaint, advertised the same for sale, and threatened to sell and would sell the same if not enjoined, etc.; that appellant has no rights or interests in said real estate, and that she therefore avers that it claims an interest adverse to her rights under her said contract of purchase; that the levy, etc., were made to embarrass and annoy appellee, and to hinder, delay, and prevent her completion of said purchase and cloud her rights in and to said real estate, instead of litigating with said vendors any right or interest the appellant might claim against them; that appellee has no desire or intention to embarrass in any way, either her vendors or appellant, as to the merits of any controversy between them, and desires that the dispute between them relating to said real estate be disposed of as speedily as possible; that appellee is ready and willing to abide by the disposition of the issues in any suit the appellant may see fit to bring against her said vendors, if the same is promptly commenced and energetically prosecuted.

The sufficiency of this complaint is questioned by counsel for appellant; but counsel for appellee insist that none of the errors relied upon for reversal, as set out in appellant's brief, present this question. Appellant concedes that the demurrer to the complaint is not in the record, but insist that the demurrer to the answer, which is assigned as error, presents the question of the sufficiency of the complaint. This would be true if appellant had assigned as error the action of the court in not carrying the demurrer back to the complaint; but this the appellant failed to do, so the ruling on the demurrer, as presented by the errors assigned, does not raise the question of the sufficiency of the complaint. McAfee v. Bending, 36 Ind. App. 628, 630, 76 N. E. 412;Lux, etc., Stone Co. v. Donaldson, 162 Ind. 481. 68 N. E. 1014;Peters v. Banta, 120 Ind, 416, 424, 22 N. E. 95, 23 N. E. 84;Baldwin v. Sutton, 148 Ind. 591, 47 N. E. 629, 1067.

The record discloses that the seventh assignment of error is: “The complaint does not state facts sufficient to constitute a cause of action.” This assignment, of course, raises the question of the sufficiency of the complaint, but counsel for appellee insist that it is waived, because appellant has failed in its brief to set it out as one of the “errors relied upon for reversal.” Appellant does, however, under his points and authorities and in his argument, call in question the sufficiency of the complaint, and insists that its sufficiency is presented by this seventh assignment of error, referring to the page of the record. We have, therefore, concluded to consider such objections urged to the complaint as are not also urged to the conclusions of law and hereafter considered in connection with the questions there considered.

Counsel insist that the complaint is bad in that it fails to allege: (1) The insolvency of the appellant; (2)that irreparable injury would result to appellee if the injunction was not granted; (3) that appellee has no legal remedy, and that the complaint, in fact, shows upon its face that appellee protected herself by withholding payment of the purchase money until the litigation between appellant and appellee's vendors was concluded. While it is true that the insolvency of the defendant is a proper averment in a complaint of this character, and when alleged and proven may be a very material and important factor in determining whether or not the injunction should be granted, yet it is not a necessary allegation in the sense that a complaint becomes subject to demurrer because of its absence. The allegation becomes important according to its weight and effect in determining the question of the inadequacy of the relief afforded by an action at law, and where the complaint alleges other facts that show such inadequacy of the legal remedy, it will be good in this respect as against demurrer, though it contains no allegation of insolvency.

Upon this subject the Supreme Court said, in the case of Wabash R. Co. v. Engleman, 160 Ind. 329, at pages 335 and 336, 66 N. E. 892 at page 894: “There is no averment in the complaint of the insolvency of the defendant, nor is such fact established by the evidence. While it is true that the insolvency of a trespasser is not, alone, sufficient to give a court of chancery jurisdiction to enjoin his tortious acts in a case where there is an absence of other necessary facts, still insolvency is an important element or factor in determining the question of the inadequacy of the relief afforded by an action at law, or, in other words it affords an additional reason to justify a court of equity to interfere, as the inability of the wrongdoer to respond in damages renders the legal remedy ineffectual.” See, also, Champ v. Kendrick, Tr., 130 Ind. 549, 554, 30 N. E. 635; High on Injunctions (3d Ed.) § 717.

(1) To have alleged the insolvency of the appellant in the case at bar would have afforded additional ground for the injunction; but there were other allegations which we think sufficiently showed the inadequacy of the legal remedy, and therefore made the complaint sufficient in this respect.

(2) In this state, under the Code and the law as expressed by the Supreme Court, it is not necessary that the complaint shall aver that the plaintiff will suffer irreparable injury if the relief by injunction is not granted. All that is necessary is to aver facts that show that “plaintiff will suffer great injury.” Section 1205, Burns 1908; Xenia Real Estate Co. v. Macy, 147 Ind. 568, 572, 573, 47 N. E. 147; Champ v. Kendrick, Tr., supra; Erwin v. Fulk, 94 Ind. 235;Allen v. Winstandly, 135 Ind. 105, 109, 34 N. E. 699.

(3) The mere fact that the complaint in the case at bar upon its face discloses that the appellee had a remedy at law does not render the complaint bad in this regard, if the other averments of the complaint show this remedy was not as “plain and adequate,” or “as practical and efficient, to the ends of justice and its prompt administration as the remedy in equity.” Bishop v. Moorman, 98 Ind. 1, 49 Am. Rep. 731; Champ v. Kendrick, Tr., supra; American Plate Glass Co. v. Nicoson, 34 Ind. App. 643, 652, 73 N. E. 625;Meyer v. Town of Boonville, 162 Ind. 165, 174, 70 N. E. 146;Estate Co. v. Macy, 147 Ind. 568, 572, 47 N. E. 147;McAfee v. Reynolds, 130 Ind. 33, 36, 28 N. E. 423, 18 L. R. A. 211, 30 Am. St. Rep. 194;Denny v. Denny, 113 Ind. 22, 14 N. E. 593.

Under the authorities supra, we think the complaint sufficient to withstand the objections urged against it, to which reference is above made. The other objections to the complaint we will consider in connection with the objections to the conclusions of law.

The second assignment of error calls in question the ruling of the court in sustaining appellee's demurrer to appellant's fourth paragraph of answer. This answer is nowhere set out in appellant's brief, and no effort is made to set out enough of the same to...