First National Bank v. Savin
| Decision Date | 14 March 1911 |
| Docket Number | 6,892 |
| Citation | 94 N.E. 347,47 Ind.App. 266 |
| Parties | FIRST NATIONAL BANK v. SAVIN |
| Court | Indiana Appellate Court |
From Superior Court of Allen County; J. H. Rose, Special Judge.
Suit by Sarah J. Savin against the First National Bank of Fort Wayne Indiana, and another. From a decree for plaintiff, defendant bank appeals.
Affirmed.
Vesey & Vesey, for appellant.
Barrett & Morris and S. R. Alden, for appellee.
This was a suit brought by appellee against appellant and Jesse Grice, as sheriff, temporarily to restrain and permanently to enjoin such sheriff from selling certain real estate, 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 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 owned and held said property as tenants by the entirety, and that they had so owned and held said property since January 2, 1903; that appellee, by reason of such contract of purchase, had, at considerable trouble and expense to herself, procured the cancelation of a lease which she held on other property, and, with the family of her daughter, had taken possession of the premises so contracted for, and has since occupied them under said contract of purchase; that after making said contract, but before the delivery of the deeds, it was reported to appellee that appellant was publicly making claim of some interest in said real estate and had brought 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 payment be withheld and the delivery of the deed delayed until said vendors of said real estate and appellant concluded their litigation; that appellant afterwards dismissed the suit against said vendors, brought to set aside their deed, and brought an action against Edmund H. Coombs, as surety, and a mercantile corporation named Edmund H. Coombs Company, as principal, on notes executed in 1905, in which action 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 Edmund H. Coombs, as surety; that appellant caused an execution to issue on said judgment to sheriff Grice, who, at the direction of appellant, levied on the real estate described in the complaint, advertised it for sale and threatens to and will sell it if not enjoined; that appellant has no rights or interests in said real estate, and appellee avers that it claims an interest adverse to her rights under her said contract of purchase; that the levy was made to embarrass and annoy appellee, and to hinder, delay and prevent her completing said purchase, and cloud her rights in and to said real estate, instead of litigating with said vendors any right or interest 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 appellant may see fit to bring against her said vendors, if said suit 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, presents this question. Appellant concedes that the demurrer to the complaint is not in the record, but insists 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 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 (1905), 36 Ind.App. 628, 76 N.E. 412; Lux, etc., Stone Co. v. Donaldson (1904), 162 Ind. 481, 68 N.E. 1014; Peters v. Banta (1889), 120 Ind. 416, 424, 22 N.E. 95; Baldwin v. Sutton (1897), 148 Ind. 591, 47 N.E. 629.
The seventh assignment of error is that "the complaint does not state facts sufficient to constitute a cause of action." This assignment 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's counsel do, however, under the points and authorities and in the argument, call in question the sufficiency of the complaint, and insist that its sufficiency is presented by the seventh assignment of errors, 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, and (3) that appellee has no legal remedy and that the complaint 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 proved may be a very material and important factor in determining whether 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 (1903), 160 Ind. 329, 335, 66 N.E. 892: See, also, Champ v. Kendrick (1892), 130 Ind. 549, 554, 30 N.E. 787; High, Injunctions (3d ed.) § 717.
To have alleged the insolvency of appellant 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.
In this State, under the code, and under the law as expressed by the Supreme Court, it is not necessary that the complaint shall aver that plaintiff will suffer irreparable injury if the relief by injunction is not granted.
All that is necessary is to aver facts showing that "plaintiff will suffer great injury." § 1205 Burns 1908, § 1148 R. S. 1881; Xenia Real Estate Co. v. Macy (1897), 147 Ind. 568, 572, 573, 47 N.E. 147; Champ v. Kendrick, supra; Erwin v. Fulk (1884), 94 Ind. 235; Allen v. Winstandly (1893), 135 Ind. 105, 109, 34 N.E. 699.
The fact that the complaint in this case discloses that appellee had a remedy at law does not render the complaint bad in this regard, if the other averments of the complaint show that 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 (1884), 98 Ind. 1, 49 Am. Rep. 731; Champ v. Kendrick; supra; American Plate Glass Co. v. Nicoson (1905), 34 Ind.App. 643, 73 N.E. 625; Meyer v. Town of Boonville (1904), 162 Ind. 165, 70 N.E. 146; Xenia Real Estate Co. v. Macy, supra; McAfee v. Reynolds (1891), 130 Ind. 33, 36, 18 L. R. A. 211, 30 Am. St. 194, 28 N.E. 423; Denny v. Denny (1887), 113 Ind. 22, 14 N.E. 593.
Under the authorities cited, we think the complaint sufficient to withstand the objections urged against it to which reference has been made. The other objections to the complaint we shall consider in connection with the objections to the conclusions of law.
The second assignment 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 effect is made to set out enough of it to present the question relied upon. Subdivision five of rule twenty-two has not been complied with, and this court will not search the record to...
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