Quinn v. Schneider

• Decision Date: 10 April 1906
• Citation: 118 Mo. App. 39,94 S.W. 742
• Parties: QUINN v. SCHNEIDER et al.
• Court: Missouri Court of Appeals

94 S.W. 742

118 Mo. App. 39

QUINN v. SCHNEIDER et al.

St. Louis Court of Appeals. Missouri.

April 10, 1906.

INJUNCTION—PETITION—SUFFICIENCY.

A petition alleging that one of defendants was an officer of a certain city, which was made a defendant, and that the individual defendant in pursuance of the order of the city, had unlawfully entered upon plaintiff's premises and commenced to excavate an embankment for a public highway, and seeking an injunction to restrain such action, was insufficient for failing to show that the order of the city was invalid, or that it was oppressive and inequitable, and that petitioner had no adequate remedy at law.

Appeal from Circuit Court, Butler County; J. C. Shepard, Judge.

Suit by L. F. Quinn against J. R. Schneider and others. From a judgment in favor of defendants, petitioner appeals. Affirmed.

L. R. Thomason, for appellant. Phillips & Phillips, for respondents.

BLAND, P. J.

Omitting caption, the petition is as follows: "Plaintiff states that the defendant, the city of Poplar Bluff, is a municipal corporation in the state of Missouri, organized and existing under and by virtue of the laws of the state as a city of the third class; that the defendant, J. R. Schneider, is an officer of said city of Poplar Bluff, holding and exercising the powers and duties of his said office as street commissioner of said city. Plaintiff states that he is the owner and in possession, in fee simple, of lot No. 74, in block No. 74, of the original town, or city, of Poplar Bluff. That on, to wit, the 15th day of July, 1904, the defendant J. R. Schneider, under color, and by virtue of his said office, and in pursuance of the orders and directions of his codefendant, the city of Poplar Bluff, unlawfully and wrongfully entered upon the premises of plaintiff herein-above described, and did unlawfully and wrongfully commence to dig, excavate, and construct a permanent embankment on said premises, for the purpose of constructing and maintaining a public highway thereon, and ditches across said premises, and that the said J. R. Schneider and the said city of Poplar Bluff are threatening to continue to dig, excavate, and construct said embankment and to dig said ditches on the premises of plaintiff for the use and purpose aforesaid. Plaintiff further states, that neither the said city of Poplar Bluff nor the said J. R. Schneider have any right or title interest in and to said premises, nor have they, or either of them, any right or authority to enter upon the same, or commit any trespass thereon. Plaintiff further states that he is the owner of the one-story frame building, now occupied as a livery barn by plaintiff's tenants, situated on said premises hereinabove described; that the defendants without right, leave, or authority are threatening to unlawfully and wrongfully tear down, remove, and destroy plaintiff's said building on said premises situated. Plaintiff further states that the defendant J. R. Schneider is insolvent, and is unable to respond in damages for the injury done and threatened to plaintiff's premises by defendants; that the city of Poplar Bluff has no property, either personal or real, subject to execution; that by reason of the insolvency of said Schneider, and by reason of the city of Poplar Bluff being a municipal corporation, without property subject to execution, plaintiff has no adequate remedy at law against the defendants or either of them; that the digging and excavating on plaintiff's said lot, and the construction of a permanent embankment thereon, and to tear down, remove, and destroy plaintiff's said building situated thereon, will cause irreparable injury and damage to plaintiff, in this, the said excavation and the construction of said permanent embankment will impair the just enjoyment of said property by plaintiff. Wherefore, plaintiff prays for an order and decree of this court, forthwith enjoining and restraining the said city of Poplar Bluff, and the said J. R. Schneider, their agents, servants, officers, and employés from entering upon said premises, and that they, and each of them, their agents, officers, servants,...