Retail Section of Chamber of Commerce of Plattsmouth v. Kieck

• Decision Date: 23 November 1934
• Docket Number: 29037
• Citation: 257 N.W. 493,128 Neb. 13
• Parties: RETAIL SECTION OF CHAMBER OF COMMERCE OF PLATTSMOUTH, APPELLEE, v. WILLIAM G. KIECK, COUNTY ATTORNEY, APPELLANT
• Court: Nebraska Supreme Court

257 N.W. 493

128 Neb. 13

RETAIL SECTION OF CHAMBER OF COMMERCE OF PLATTSMOUTH, APPELLEE, v. WILLIAM G. KIECK, COUNTY ATTORNEY, APPELLANT

No. 29037

Supreme Court of Nebraska

November 23, 1934

APPEAL from the district court for Cass county: JAMES T. BEGLEY JUDGE. Reversed and dismissed.

Judgment reversed and action dismissed at plaintiff's cost.

Syllabus by the Court.

1. General demurrer admits only such facts as are well pleaded and does not admit mere conclusions of the pleader.

2. In petition for injunctive relief, an allegation that plaintiff has no adequate remedy at law is not sufficient. Facts must be alleged from which inadequacy of legal remedy is apparent.

3. A lottery is a scheme for the distribution of prizes by chance, and where the winner must give something of value for the chance.

4. Coupons, good for a drawing by chance of something of value, that are given with the purchase of merchandise constitute a lottery.

Appeal from District Court, Cass County; Begley, Judge.

Action by the Retail Section of the Chamber of Commerce of Plattsmouth, an unincorporated association, composed of H. E. Wentworth and others, against William G. Kieck, as County Attorney of Cass County. From an adverse judgment, defendant appeals.

Judgment reversed, and action dismissed.

Paul F. Good, Attorney General, and Paul P. Chaney, for appellant.

W. A. Robertson, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and RAPER, District Judge.

OPINION

GOOD, J.

This is an action for injunction. Defendant's general demurrer to the petition was overruled. He refused to further plead. Injunction as prayed was decreed by the trial court. Defendant has appealed.

We are required to determine whether the petition stated sufficient facts to entitle plaintiff to injunctive relief.

From the petition it appears that plaintiff is an unincorporated association of retail merchants in the city of Plattsmouth; that defendant is the qualified and acting county attorney of Cass county; that the members of plaintiff have formulated and are operating what they term a gift program and advertising enterprise. The plan of operation, as briefly summarized, is that the members of the plaintiff issue a free gift coupon with each 25-cent purchase by any of their customers; that these coupons are placed in a ballot box and a weekly drawing from the gift coupons is held and the winner thereof is given gift tickets which are redeemable in merchandise at the stores of any of the members of plaintiff. Defendant, as county attorney, has threatened to stop said practice of plaintiff, to interfere with the ballot boxes where the gift coupons are deposited, and to interfere with plaintiff's members, its agents, servants and employees in the operation of the practice, and the threat of defendant to interfere with and stop said enterprise was interfering with the business of the members of plaintiff, and they had no adequate remedy at law. Plaintiff prayed that defendant be enjoined from, in any way, interfering with plaintiff in the operation of such program and practice.

Defendant contends that the petition shows that plaintiff had an adequate remedy at law, and therefore was not entitled to injunctive relief, and, secondly, that the program and enterprise being carried on by plaintiff and its members was a lottery and not a lawful enterprise. On the other hand, plaintiff contends that the mere allegation in the petition that plaintiff had no adequate remedy at law was a sufficient allegation of fact and that the demurrer admitted this fact, and further contends that the program and enterprise being operated by plaintiff and its members was a lawful enterprise and not a lottery.

With respect to the first proposition, it is a familiar rule that a general demurrer admits the truth of all well pleaded allegations in the pleading to which it is directed. It is an equally familiar rule that such a demurrer does not admit a mere conclusion of the pleader. Busboom v. Schmidt, 94 Neb. 30, 142 N.W. 290; Dodson v. Woolworth Co., 118 Neb. 276, 224 N.W. 289. "In fact a bare allegation that there is no adequate remedy at law is not sufficient; facts must be alleged from which the inadequateness of the legal remedy is apparent." 13 Standard Ency. of Procedure, 84.

From the entire petition and the briefs, it is apparent that the act of the county attorney which plaintiff seeks to enjoin is prosecution of the members of the plaintiff for a violation of the lottery statute. There is no contention that this statute is invalid or unconstitutional, no allegation that defendant...