North v. Peters

'(1) On the 13th day of November, 1883, one P. M. Lund was the owner of property described in the plaintiff's complaint. (2) On said 13th day of November, 1883, said Lund sold and conveyed the said property to the plaintiff, and he, plaintiff, entered into immediate possession thereof. (3) That said sale by Lund to Peters, the plaintiff, was made by Lund for the purpose of putting said property and proceeds thereof beyond the reach of his (Lund's) creditors, and to defraud said creditors. (4) That the plaintiff at the time of purchase of said property from said P. M. Lund had no knowledge of Lund's purpose in the disposition of said goods. (5) That the defendant is, and at the time of said sale and transfer of said property was, sheriff of said Lincoln county; that on the 15th and 16th days of November, 1883, he, the said defendant, as sheriff aforesaid, levied upon the said property as the property of said Lund, the same then being in the possession of the plaintiff, under and by virtue of certain warrants of attachment issued out of this court at the suit of various creditors of said Lund, being the same warrants of attachment the enforcement of which against said property is sought to be enjoined in this action. (6) That at the trial by the jury of the question of fact, as hereinbefore stated, all the allegations of fraud, malice, oppression, and collusion on the part of the defendant were stricken from the plaintiff's complaint on the motion of plaintiff's attorney. (7) That no evidence was adduced that the plaintiff would suffer any irreparable injury in consequence of the seizure by the sheriff of said property.

'Conclusions of law: (1) That the verdict of the jury heretofore rendered in this case on the question of fact, as herein stated, is but an advisory verdict, and should be received and accepted only as such by the court in determining the issues in this action. (2) Under the pleadings and proofs herein the plaintiff is entitled to the relief demanded in his complaint; that the preliminary injunction heretofore issued should be made perpetual and final in accordance with the prayer of plaintiff's petition. Let judgment be entered accordingly.'

Judgment was entered in accordance with the findings and conclusions of law. Afterwards a motion for a new trial was denied by the court, at which time the court found the following facts and conclusions of law, in addition to those theretofore found, to-wit:

'First. That the purchase by plaintiff from P. M. Lund of the goods and chattels mentioned in the complaint included the good-will of the business heretofore carried on by the said Lund under the name of P. M. Lund & Co. Second. That the consideration for the said sale and transfer from the said P. M. Lund to the plaintiff was the sum of ten thousand three hundred and eighty dollars, then and there paid by plaintiff to said Lund, and that said consideration was fairly adequate. Third. That at the time of the seizure by the defendant of the goods and chattels mentioned in the complaint and composing the former stock of P. M. Lund & Co. the plaintiff was in possession thereof as the owner, conducting a profitable business as a retail merchant, and that the acts and threatened acts of the defendant, under and by virtue of the said attachments mentioned and referred to in the pleadings, would, unless restrained by the court, necessarily destroy plaintiff's said business, and deprive him of the probable profits that might be realized therefrom, and that it would be extremely difficult to ascertain or estimate the pecuniary detriment which the plaintiff would sustain thereby. Fourth. That the said goods and chattels mentioned in the complaint, and the plaintiff's said business, comprised his entire property and pecuniary resources. Fifth. That it is admitted by the pleadings and appears as a fact that at the time referred to in the complaint the defendant, as sheriff of Lincoln county, seized the said goods and chattels, under and by virtue of sundry warrants of attachment sued out against the property of P. M. Lund; that the defendant, assuc h sheriff, then had in his hands many more such attachments against the said Lund which he threatened to levy upon the said goods and chattels, and that numerous other creditors of said Lund were then threatening to sue out and place in the hands of defendant additional warrants of attachment for the purpose of having the same levied upon the said goods and chattels as the property of the said Lund.

'Conclusions of law: (1) That it would be extremely difficult to ascertain the amount of compensation which would afford the plaintiff adequate relief from the acts done and threatened to be done by the defendant. (2) That it is necessary to restrain the acts threatened to be done by the defendant to prevent a multiplicity of judicial proceedings. (3) That the plaintiff is entitled to the relief demanded in the complaint.'

An appeal was taken to the supreme court of the territory, which, on October 9, 1886, rendered a judgment affirming the judgment of the court below, without delivering any opinion in the case. An appeal from that judgment brings the case here.

F. B. Dodge and Enoch Totten, for appellant.

[Argument of Counsel from pages 277-280 intentionally omitted]

J. W. Taylor, for appellee.

Mr. Justice LAMAR, after stating the facts as above, delivered the opinion of the court.