Van Natta-Lynds Drug Co. v. Gerson

The opinion of the court was delivered by Horton, C. J.: Upon the application of the plaintiff for a temporary injunction to restrain the sale and disposition of the stock of goods in controversy during the pendency of the proceedings in error, this court granted a restraining order against the defendants, until it had time to examine the record and affidavits on file. The only question for us now to pass upon is, whether the restraining order heretofore granted shall be set aside, or be continued until the final hearing of the case. On account of the overburdened docket of this court, this case will not be called for hearing, in its regular order, for nearly two years. The property in dispute ought not to be tied up for so great a length of time, unless it is absolutely necessary so to do, to protect the rights of the plaintiff. The district court refused to grant a temporary injunction. A temporary injunction is not a matter of strict right; its issue rests with the sound discretion of the judge. If the rights of a plaintiff are not prejudiced by a refusal of the temporary injunction, it ought to be denied. (Akin v. Davis, [664] 14 Kas. 143; Conley v. Fleming, 14 id. 381; Olmstead v. Koester, 14 id. 463.) It was said in Wood v. Millspaugh, 15 Kas. 14, that— “The district courts, and the judges thereof, have considerable discretion in allowing and disallowing, and in sustaining or vacating temporary injunctions; and therefore, when the reasons urged for and against a temporary injunction are very nearly equally balanced, the supreme court will not reverse an order of the district court, or a judge thereof, vacating a temporary injunction.” If the plaintiff has not a full and complete remedy without the appointment of a receiver, or the granting of the temporary injunction in the action brought by him against Joseph Gerson and others to attack their collusive proceedings in placing the goods in dispute in oustodia legis, to defraud the creditors of Gerson & Co., then, we think, he has a sufficient remedy against Joseph Gerson under the garnishment proceedings already instituted. In this connection it is pertinent to state that the petition of the plaintiff alleges that Joseph Gerson “is quite wealthy, and the possessor and owner of large and valuable properties, both real and personal.” The plaintiff's claim against George Gerson & Co. is only $400, with interest. Therefore it is clearly evident, from the showing made by plaintiff, that Joseph Gerson is amply able to respond to any judgment that the plaintiff may be entitled to recover. The statute provides that— “From the time of the service of the summons upon the garnishee he shall stand liable to the plaintiff to the amount of the property, moneys, credits and effects in his possession or under his control, belonging to the defendant or in which he shall be interested, to the extent of his right or interest therein, and of all debts due or to become due to the defendant, except such as may be by law exempt from execution. Any property, moneys, credits and effects held by a conveyance or title, void as to the creditors of the defendant, shall be embraced in such liability.” (Gen. Stat. of 1889, ¶4296.) The statute further provides that— “The proceedings against a garnishee shall be deemed an [665] action by the plaintiff against the garnishee and defendant, as parties defendant, and all the provisions for enforcing judgments shall be applicable thereto; but when the garnishment is not in aid of an execution, no trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action, and if the defendant have judgment, the garnishee action shall be dismissed with costs.” (Gen. Stat. of 1889, ¶ 4293.) On the part of the plaintiff it is claimed, however, that as George W. Rogers and J. C. McClelland (the sheriff of King-man county) are not parties in the garnishment proceedings against Joseph Gerson, a full investigation of the collusive proceedings of Joseph Gerson with the other parties cannot be had. It appears from the record and affidavits submitted, that Joseph Gerson was the moving party in the alleged fraudulent proceedings. He has all of the property in his possession. He is charged with fraudulent practices in attempting to hold it under the forms of law, to hinder, delay and defraud the creditors of George Gerson & Co. In such a case, the courts will investigate very fully the conduct and acts of the party attempting to consummate the fraud, and we perceive no difficulty whatever in fully protecting the rights of the plaintiff in the garnishment action. If Joseph Gerson’s chattel mortgage was executed without consideration, it can be shown in the garnishment proceedings; therefore, if his chattel mortgage is void as to creditors, it will not protect him. Neither George W. Rogers nor J. C. McClelland, the sheriff, has the possession of the property sought to be appropriated to the payment of plaintiff’s claim. The pendency of the proceedings in error in this case will not prevent the prosecution of the action of plaintiff against Gerson & Co., Joseph Gerson, and others, in the district court, nor will the proceedings in error prevent the prosecution of the garnishment action brought by plaintiff. If the attachment proceedings of plaintiff against Gerson & Co. were prematurely brought, of course plaintiff can, if he so desires, obtain a new order of attachment. The restraining order will be set aside, at the cost of the plaintiff. A temporary injunction will be refused. All the Justices concurring.