Burton v. Walker

Young, C. J. The defendants have appealed from an order of the district court overruling their motion to set aside a temporary injunction which was issued and served with the summons and complaint in this action. The order in question enjoined the defendants from advertising and selling two trunks and their contents, which are owned by the plaintiffs, and were seized and are now held by the deputy sheriff under a writ of attachment issued from the justice court of the defendant A. A. Walker in an action wherein the defendant Shanks was plaintiff and these plaintiffs were defendants. The action in j-ustice court was brought to recover a balance of $82, alleged to be due for medical treatment. The summons in the above case was served on Mrs. Burton, but not upon L. H. Burton, her husband. On the return day, August 15, 1903, the deputy sheriff filed his return showing that service could not be made upon L. H. Burton, whereupon the plaintiff requested the justice to issite a second summons under the provisions of section 6643, Rev. Codes. The defendants (plaintiffs in-this action), who were present in person and by counsel, moved' to dissolve the attachment, and later offered to waive any alleged defect'in the service. Their motion was denied, and the plaintiff’s motion for a second summons was granted, and .the case was continued to September 12, 1903, the return day named in the second summons. Prior to the return day, and on August 26, 1903, the defendants in that action instituted the present action in the district court. The complaint, in addition to alleging the facts already enumerated, alleges that the defendant Shanks filed a request with the justice of the peace asking that the trunks and their contents be sold, and the proceeds applied to the satisfaction of his claim; and that “in the meantime the defendants herein threaten to sell plaintiffs’ trunks and wearing apparel, * * * [152] and that plaintiffs have reason to believe and do believe that, if not Restrained, said justice of the peace will order said trunks and their contents sold; and plaintiffs are liable to suffer irreparable injury and damage, and have not a good, sufficient and adequate remedy at- 'law in the -premises.” The relief prayed for is that -defendants be restrained from selling said trunks, or offering them for sale, and for costs. (100 N. W. 257.) The order appealed from must be reversed. The complaint does not state facts sufficient to constitute a cause of action for equitable relief. A temporary restraining order may be issued upon the plaintiff’s application to protect his interests in the litigation pending the determination of the action, when one of the several conditions enumerated in section 5344, Rev. Codes 1899, exist; but it may issue only “when it shall appear by the complaint that the plaintiff is entitled to the relief demanded.” This case is controlled, both as to the sufficiency of the complaint and the right to the temporary restraining order, by Forman v. Healey, 11 N. D. 563, 93 N. W. 866. See, also, McClure v. Hunnewell, 13 N. D. 84, 99 N. W. 48. In the case first cited we said that: “The -provisional remedy by injunction in this state is of statutory origin, and is granted a plaintiff when necessary to protect his rights pending final determination of the case upon the merits; and this only when the complaint contains averments which, if proven, would entitle plaintiff to the relief demanded, and its issuance is made to appear as necessary to protect plaintiff’s rights during the litigation;” citing numerous cases. The complaint in this case, as in the case just referred to, contains no averments which would authorize equitable relief. The most that can be said is that the defendants threaten to convert their property. It is elementary that equity will not interfere to prevent a conversion of personal property save under exceptional circumstances, the remedy at law being usually adequate. No circumstances are alleged in the complaint to take the case from the general rule. The district court is directed to vacate the order appealed from and also the order granting the temporary injunction. All concur.