19 F. 855 | U.S. Cir. Ct. | 1884
It seems clear that if complainant has brought his case within our equity jurisdiction a proper and meritorious case for an injunction is shown. The admitted damages committed and being committed by defendants are irreparable, restitution being impossible, and the money value not being ascertainable, and the defendants are insolvent, or next door to insolvency. The' defendants first urge that as no suit in ejectment is pending, and no specific fraud alleged in the bill, the action is one of ejectment in the form of a hill in chancery. Were this all of the case there would he nothing further to do than to refuse the motion and, sua sponte, direct the bill to be dismissed. Lewis v. Cocks, 23 Wall. 469. But the complainant shows ono suit for damages now pending, the recovery of one judgment in ejectment, and possession obtained thereunder, which was lost by the fraud and illegal influences of the defendants, and the ease shows that a multiplicity of suits at law will be necessary for the complainant to obtain at law an adequate remedy. Equity will entertain bill to prevent a multiplicity of suits. Garrison v. Ins. Co. 19 How. 312; Story, Eq. Jur. § 928. Injunctions are granted to prevent trespasses as well as to stay waste, whore the mischief would be irreparable and to prevent a multiplicity of suits. Livingston v. Livingston, 6 Johns. Ch. 497; Story, Eq. Jur. §§ 928, 929. That the defendants deny complainant’s title, and that no suit at law is pending to settle the question of title, is a very serious objection to the granting of the injunction asked; but it seems the effect of this is avoided from the following facts apparent on the record: (1) The defendants do not deny nor assert title under oath. Griffin v. Bank, 17 Ala. 258; Rainey v. Rainey, 35 Ala. 282. (2) The title claimed by defendant as defeating complainant’s, appears to be one obtained by attachment against a bankrupt, issued long after the bankruptcy and seizing property sold by the bankrupt months before the bankruptcy, making a very doubtful pretense of title, nearly a sham on its face. Rev. St. §§ 5119, 5120; Bank v. Buckner, 20 How. 108. (8) The defendants compelled the complainant to elect between his hill in equity and his suit in ejectment, and now object to the state of litigation as forced by themselves.
In the case of West Point Iron Co. v. Reymert it was held that mines, quarries, and timber are protected by injunction, upon the ground that injuries to and depredations upon them, are, or may cause, irreparable damage, and with a view to prevent a multiplicity of suits; nor is it necessary that the plaintiff’s right should be first established
“It was a proper ease for relief by injunction if the plaintiff’s right to the mine was established, and it was not necessary that the right should be lirst established in an action at law. The injury complained of was not a mere fugitive and temporary trespass, for which adequate compensation could be obtained in an action at law, but wa3 an injury to the corpus of the estate.” Page 705.
See, also, Thomas v. Oakley, 18 Ves. 184; Story, Eq. Jur. 929; and see McLaughlin v. Kelly, 22 Cal. 211.
The want of diligence urged against the complainant is that, as the defendants filed their answer September 14, 1883, the complainant should have had his ease ready for hearing at the October term following. The complainant had until the October rules to demur, or reply, and then he was entitled to three months to take testimony before he could be charged with want of diligence. Besides the October term seems to have been used up in determining whether complainant should elect between his action at law and his bill in equity, an'd from affidavit on file, it seems the chancery docket was not called from press of other business.
On the whole case, I do not see, in view of the insolvency of the defendants, rendering a multiplicity of suits necessary, for the complainant to protect himself at law, and that the injuries complained of are to the body of the estate, and considering that this court has forbidden the complainant to prosecute his suit at law and his bill in equity at the same time, how, in eojuity, an injunction preserving the rights of the parties, pending the suit, can be refused.
The rights of the defendants will be saved by complainant’s giving bond in the sum of $1,000.
