Xenia Real-Estate Co. v. Macy
Decision Date | 12 May 1897 |
Citation | 47 N.E. 147,147 Ind. 568 |
Parties | XENIA REAL-ESTATE CO. et al. v. MACY. |
Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Miami county; J. G. Cox, Judge.
Suit by Frank Macy against the Xenia Real-Estate Company and others.Judgment for plaintiff, and defendants appeal.Affirmed.
Roscoe Kimple, for appellants.S. L. Strider and N. N. Antrim, for appellee.
This appeal was taken from a judgment and decree granting appellee a perpetual injunction against appellants, with damages.Each appellant assigned as error: (1) The amended complaint does not state facts sufficient to constitute a cause of action.(2)The court erred in overruling appellants' motion for a new trial.(3)The court erred in overruling appellants' motion to modify the judgment and decree.
The amended complaint, so far as necessary to the determination of the questions presented, is substantially as follows:
There was no demurrer to the complaint in the court below, and it is well settled that, when the sufficiency of a complaint is tested for the first time by an assignment of error in this court, it will be held sufficient if it contain facts enough to bar another action.Railroad Co. v. Willoeby, 134 Ind. 563, 565, 33 N. E. 627, and cases cited;Loeb v. Tinkler, 124 Ind. 331, 333, 24 N. E. 235, and cases cited.It is not insisted by appellees that the complaint does not state facts sufficient to constitute a cause of action for damages, but that it does not state facts sufficient to entitle appellee to an injunction.If the complaint states facts sufficient to entitle appellee to damages, a part of the relief prayed for, it is sufficient to withstand the first error assigned, or even a demurrer for want of facts.Culbertson v. Munson, 104 Ind. 451, 4 N. E. 57;Railroad Co. v. Van Slike, 107 Ind. 480, 8 N. E. 269;School Tp. v. Hay, 107 Ind. 351, 8 N. E. 220;Locke v. Catlett, 96 Ind. 291;Loeb v. Tinkler, supra.We think the complaint not only states facts sufficient to entitle appellee to damages, but also to an injunction.
It is not necessary, in an application for an injunction, as insisted by appellant, to aver and prove that the plaintiff will suffer irreparable injury if the relief by injunctoin is not granted.All that is necessary is to aver that the plaintiff will suffer great injury.Rev. St. 1894, § 1162 (Rev. St. 1881, § 1148).If, from the facts alleged in the complaint, it is apparent that appellee had no other complete or adequate remedy, the same was sufficient to entitle him to an injunction.Denny v. Denny, 113 Ind. 22, 14 N. E. 593;Champ v. Kendrick, 130 Ind. 549, 553, 30 N. E. 787;Bishop v. Moorman, 98 Ind. 1;Erwin v. Fulk, 94 Ind. 235;Allen v. Windstandly, 135 Ind. 105, 109, 34 N. E. 699.It was said by this court in Champ v. Kendrick, supra, quoting from3 Pom. Eq. Jur. § 1357, “that a remedy which prevents a threatened wrong is in its essential nature better than a remedy which permits the wrong to be done and then attempts to pay for it by pecuniary damages which a jury may assess.”Denny v. Denny, supra, was an action brought by a widow to enjoin the executor from selling corn which she claimed the right to take as such widow at its appraised value.An injunction was granted by the trial court.This court, in affirming the judgment, said: The complaint alleges that, relying upon the agreement of the Xenia Real-Estate Company to furnish natural gas from their well and permit appellee to connect the gas main from said well with his light plant, he erected the same at large expense, and entered into a number of contracts to furnish electric light to the city and private consumers, and that to disconnect the light plant from said natural gas main will cause a breach on his part of...
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