James v. Dixon

• Decision Date: 31 October 1854
• Citation: 20 Mo. 79
• Court: Missouri Supreme Court
• Parties: JAMES & JEWETT, Respondents, v. DIXON, Appellant.

20 Mo. 79

JAMES & JEWETT, Respondents,

v.DIXON, Appellant.

Supreme Court of Missouri.

October Term, 1854.

1. An injunction does not lie to restrain a trespass upon a franchise, unless the trespasser is insolvent or the injury irreparable.

Appeal from Jefferson Circuit Court.

This was a petition for an injunction to restrain Dixon from selling and shipping wood on and from the “Selma landing,” to which the petitioners claimed an exclusive right for that purpose. The petition alleged that the defendants were utterly insolvent.

At the hearing, the court found the following facts: On or about January 23, 1850, Dixon and Skeel entered into a partnership in the business of cutting cord wood and selling it to steamboats on the Mississippi river, and for that purpose took a lease from the owner of the Selma landing, which gave them the exclusive privilege of selling wood on said landing until November 5, 1854. Dixon & Skeel continued to cut and sell wood, as partners, until October, 1851, when Skeel died. Letters of administration were taken out on his estate. After the refusal of the surviving partner to administer upon the partnership effects, the administrator took them into possession, and sold the unexpired term of the lease in question at public auction, having first given notice, and the plaintiffs became the purchasers, and received a bill of sale. At the time of the sale, arrears of rent were due to the owner, which had been allowed against Skeel's estate. After the purchase by plaintiffs, defendant continued to sell wood upon the landing upon his own separate account, and refused to surrender it to the plaintiffs or to account with them.

Upon these facts, the court declared that the plaintiffs were entitled to the exclusive enjoyment of the franchise, and granted a perpetual injunction, and gave judgment for the possession.

Noel and Pipkin, for appellant, contended that the lease was not partnership property, and could not be sold as such by Skeel's administrator.

Frissell and Jones, for respondent.

SCOTT, Judge, delivered the opinion of the court.

The only circumstance that could have warranted an injunction in this cause, was the alleged insolvency of the defendant. As that fact was not found by the court, there was no ground for an injunction. An action in the nature of an action on the case (as the property affected was incorporeal) would have afforded ample redress to the plaintiffs. The case, stripped of the allegation of insolvency, furnished no...