Sierra Nevada Silver Mining Co. v. Sears ( 1875 )

By the Court,

Hawley, C. J.:

Upon filing its complaint, plaintiff obtained an order requiring defendants to appear on a certain day, therein named, and show cause, if any they could, why an injunction should not issue, and in the meantime defendant Sears was restrained and enjoined from selling, transferring or in any manner disposing of ‘ certain certificates or shares of stock, issued by the Allen Company, to any party, person or corporation than plaintiff. On the return day defendant Sears appeared specially by his attorneys and moved “to quash and dismiss the order to show cause.” The court overruled this motion and ordered that the restraining order be continued until the further order of this court.”

This appeal is taken, by defendant Sears, from the order of the court “refusing to dissolve the injunction heretofore granted in this action.”

Appellant claims that the.injunction ought to have been dissolved, because the complaint fails to show that plaintiff has not a plain, speedy and adequate remedy at law, and argues that it had such a remedy by the ordinary action of replevin. From the allegations of the complaint — which, in this case as presented, must be taken as true — it will be observed, as is therein stated, that it is impossible to measure plaintiff’s injuries in damages. It is alleged that plaintiff made the purchase of the certificates of stock, to buy its peace, to save annoyance, to avoid litigation and to prevent a cloud upon its title; that the value of said shares of stock was merely nominal and could not be estimated like the shares of stock in other corporations having a market value.

Under the provisions of section 202 of the civil practice act (1 Comp. L. 1263), the judgment in action's to 'recover the possession of personal property must be in the alternative, and if the property cannot be delivered, the judgment is satisfied by the payment of damages. In actions of this character, where the remedy at law would be inadequate, and, the injury to plaintiff be irreparable, equity will interfere by injunction and restrain the party wrongfully in possession of the property from disposing of it. (2 Wait’s Pr. 31, 32, and the authorities there cited.) It would, for reasons already stated, be unnecessary for plaintiff to allege the insolvency of the defendant, >and the complaint is not defective in this respect.

'The verification to tbe complaint'is in tbe form required by section 113 of tbe practice act (1 Comp. L. 1174), wbicb implies that tbe averments of tbe complaint may be made upon information and belief.

It is argued that tbe plaintiff so carelessly and negligently left tbe certificates of stock standing in tbe name of a trustee regularly indorsed, as to clotbe any person, from whom Sears may have purchased, with tbe indicia of ownership thereof. Counsel upon this, as well as other points, assume that Sears was a tona fide purchaser for value,- — a fact that plaintiff was not required to, and did not allege, and wbicb this Court, under tbe averments of the complaint, is not authorized to presume. There is an allegation in tbe complaint that tbe certificates were in plaintiff’s possession “until tbe same were lost, or, as plaintiff is informed and believes, were stolen from it.” Tbe question whether or not due diligence has been used by plaintiff to recover tbe certificates of stock, or put third parties on notice of its loss, is one that could not be raised by appellant unless it was, at least, shown that be was an innocent purchaser in good faith. It is, therefore, unnecessary to discuss this or other objections urged by appellant.

In our opinion tbe complaint states a prima facie case, and as there was no answer to ihe complaint, nor any showing made upon tbe merits of tbe case, and inasmuch as tbe granting or refusing an injunction pendente lite rests very much in tbe sound discretion of tbe court, we do not think its order ought to be disturbed. This disposes of tbe appeal, and renders it unnecessary to notice tbe preliminary objections, on questions of practice, urged by respondent.

Tbe order appealed from is affirmed.