Barth v. Union National Bank , 1896 Ill. App. LEXIS 34 ( 1896 )

Mr. Justice Gary

delivered the opinion of the Court.

This is an appeal from an interlocutory order granting, without notice, an injunction to the appellee to restrain the appellant “ from selling, transferring or otherwise disposing of the fifty (50) shares of the capital stock of the Edward Hines Lumber Company represented by certificate number twenty-eight (28).” The bill, properly verified, alleged that the stock was pledged to the bank as collateral security for a note of the appellant for $5,000, which being overdue, the bank notified the appellant that it would sell the stock at auction; that at the time and place of sale the appellant appeared, with two attorneys, one of whom objected to the sale proceeding, and the other asked to see the certificate, which being handed to him he immediately delivered it to a constable, who held a replevin writ sued out by the appellant from a' justice, upon an affidavit stating that the value of the certificate was $10. The bill alleges that the stock is worth $5,000.

We disregard the statement in the bill, of the fear of the bank that the appellant “ will make way with the said certificate,” and also the clause in the accompanying affidavit that “ the rights of the complainant in said bill will be unduly prejudiced if the injunction prayed for therein is not issued immediately and without notice; ” but the suing out a replevin writ, upon an affidavit that the stock was of the value of $10, followed by the presence of the appellant at the time and place of sale, attended by two attorneys, whose combined fees must have been that sum several times multiplied, is of itself such evidence that the appellant was reckless of consideration worthy of regard, that, taking into account the method adopted to obtain possession of the certificate, it did fairly “ appear ” to the court that the conclusion expressed in the affidavit accompanying the bill was a just one. So much of the order as has been recited is therefore affirmed.

The fact that the certificate is in “ custodia legis,” when the custodian is the party interested in evading the claim of the bank upon the certificate, is no impediment to such restraint upon him as may be prudent to prevent wrongdoing.

To the residue of the order enjoining the prosecution of the replevin suit, there is no separate assignment of error. The assignments are in effect that the whole order is wrong, and therefore if it is in part right, the assignments must be overruled. 2 Ency. PL & Pr., 951.

The order appealed from is affirmed.