Seabrook v. Mostowitz
| Decision Date | 10 March 1898 |
| Citation | 51 S.C. 433,29 S.E. 202 |
| Parties | SEABROOK . v. MOSTOWITZ et al. |
| Court | South Carolina Supreme Court |
Appealable Order — Injunction — Saletjndek Chattel Mortgage.
1. An order dissolving a temporary injunction restraining the sale of property under a chattel mortgage claimed by mortgagor to be void, under Rev. St. 1893, § 2464, by reason of a tender of payment of the debt and costs, is appealable.
2. A chattel mortgagor is entitled to a temporary injunction to restrain the sale of property under the mortgage alleged by him to be void, under Rev. St. 1893, § 2464, by reason of a tender of payment of the debt and costs, until the issue as to such tender can be tried on the merits; and its dissolution by a judge at chambers on affidavits is error.
Appeal from common pleas circuit court of Charleston county; W. C. Benet, Judge.
Action by E. Seabrook against Morris Mos-towitz and Hugh Ferguson, agent, to have certain chattel mortgages declared null and void, and to restrain the sale of property thereunder. From the order dissolving the temporary Injunction, plaintiff appeals. Reversed.
Edwards & Sasportas, for appellant.
Mordecai & Gadsden, for respondents.
This action was brought to have certain chattel mortgages, executed by plaintiff to defendant Mostowitz declared null and void on the ground that plaintiff had tendered to defendant the balance Of principal and interest and all costs due thereon. The complaint further alleged that the defendant Hugh Ferguson as agent of the defendant Mostowitz, without having made a seizure, has advertised the said personal property (viz. two Platte Bros, gins, one portable boiler and engine, one corn mill, and one cart) for sale, and is proceeding to sell the same under said mortgages' that plaintiff carries on the business of ginning cotton, and that to be deprived of his property above mentioned at this time will wholly stop his business for the year, as the business is carried on principally from 1st September to the 31st of December of each year, and will permanently disturb his business, in driving his patrons elsewhere, thereby seriously and materially injuring the plaintiff, which injury will be irreparable;that plaintiff has no adequate remedy at law. A perpetual injunction restraining defendants from proceeding under said mortgages was prayed for. On the 14th day of August, 1896, Judge Benet granted a temporary injunction restraining the defendants from interfering with the said property, and issued a rule requiring defendants to show cause why such restraining order should not be continued until the hearing on the merits. The hearing at the return was upon the complaint supported by the affidavit of plaintiff and the answer supported by the affidavits of the defendants. It will be sufficient here to state that the answer denied the allegation that defendant Ferguson had not seized said property, alleging that he had made seizure thereof, and had been in possession since said seizure, and was proceeding to sell the same until restrained by the court. The...
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Seabrook v. Carolina Power & Light Co.
... ... the plaintiffs would be entitled to the injunction prayed ... for. The authorities cited by appellants in their argument ... sustain the view we have taken. 2 High on Inj. (3d Ed.) § § ... 1509, 1511, and 1512; Seabrook v. Mostowitz, 51 S.C ... 433, 29 S.E. 202.' See, also, Oil Co. v. Ice Co., 62 S.C ... 196, 40 S.E. 169." ... [159 ... S.C. 9] I am inclined to agree with the view of Mr. Justice ... Cothran expressed in another case, somewhat similar to the ... one at bar, when he used this language: ... ...
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Ex parte Jones
... ... of a receiver at chambers ... In the ... very recent case of Seabrook v. Carolina Power & Light ... Company, 159 S.C. 1, 156 S.E. 1, 3, in discussing an ... erroneous refusal of the circuit judge to grant a temporary ... argument sustain the view we have taken. 2 High on Inj. (3d ... Ed.) § § 1509, 1511, and 1512; Seabrook v ... Mostowitz, 51 S.C. 433, 29 S.E. 202.' See, also, ... Oil Co. v. Ice Co., 62 S.C. 196, 40 S.E. 169." ... It is ... not necessary, however, ... ...
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Jones v. Jones
...cited by appellants in their argument sustain the view we have taken. 2 High on Inj. (3d Ed.) §§ 1509, 1511, and 1512; Seabrook v. Mostowitz, 51 S. C. 433, 29 S. E. 202.' See, also, Oil Co. v. Ice Co., 62 S. C. 196, 40 S. E. 169." It is not necessary, however, to determine in this case what......
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Columbia Broadcasting System, Inc. v. Custom Recording Co.
...be error of law to refuse a temporary injunction. Strom v. Am. Mortg. Co., 42 S.C. 101, 20 S.E. 16; Seabrook v. Mostowitz, 51 S.Ct. 434, 29 S.E. 202; Cudd v. Calvert, 54 S.C. 457, 32 S.E. 503; Oil Co. v. Ice Co., 62 S.C. 196, 40 S.E. 169; Riley v. Charleston Union Sta. Co., 67 S.C. 84, 45 S......