Rosendorf v. Mandel, 18 Nev. 129

Rosendorf v. Mandel

18 Nev. 129 | Nev. | 1883

By the Court,

Belknap, J.:

Plaintiff recovered a judgment at law against the firm of Meyer Bros. Thereafter, J. Baum & Co., other creditors of Meyer Bros., commenced a suit in equity against the plaintiff and others to set aside the judgment, and obtained an injunction against the sheriff of the county requiring him to hold all moneys he might realize from the sale of property levied on in the case of Rosendorf v. Meyer Bros. until *132the further order of the court. Defendant in the equity suit (plaintiff here) prevailed, and the present action is brought upon an undertaking entered into upon the issuing of the injunction. Trial was had upon the merits, and judgment rendered in favor of plaintiff.

The only question made arises upon the judgment roll, and is whether the complaint states facts sufficient to constitute a cause of action. It is claimed that no breach of the condition of the undertaking is assigned, in that the complaint does not state that the complainants in the equity suit have not paid the damages incurred by reason of the injunction. The complaint alleges “ plaintiff has been damaged by reason of said injunction in the sum of three thousand dollars, no part of which has been paid.” This averment is sufficient. The only objection that can be suggested is that it is general, and does not expressly state complainants have not paid the damages ; but the suggestion is without merit, and could be raised only upon special demurrer.

It is also claimed that the complaint is defective in not stating a demand. Mr. Chitty says that a demand must be averred when, by the terms of the contract, it is incumbent on the plaintiff to request the defendant to perform his contract, such request being, as it were, a condition precedent. (Chit. PI. 340.) But this is not a case in which a request is necessary to the right of action. The condition of the undertaking is that the complainants in the equity suit will-pay to the parties enjoined such damages, not exceeding one thousand five hundred dollars, as they may sustain by reason of the injunction, and no demand or other act upon the part of the plaintiff here is contemplated. Defendants covenanted that plaintiff should be paid. He was not paid. They were therefore in default, and no demand was necessary. (Gibbs v. Southam, 5 Barn. & Adol. 911; Dyer v. Rich, 1 Met. 180; Nelson v. Bostwick, 5 Hill 40.)

The injunction order restrained the sheriff' from applying any moneys that might be realized upon the execution sale of the property of defendants, in the case of Rosendorf v. Meyer Bros., to the satisfaction of the judgment, and *133directed him to bold sucb moneys until the further order of the court. . Upon the sale, the sheriff refused to credit plaintiff’s judgment with his bid, and thereby, plaintiff alleges, he was prevented from purchasing the property, and damaged. In general, the law does not require the execution creditor to pay the amount of his own bid in money, because the creditor is himself entitled to receive the money recovered upon his execution. He is not, therefore, required to pay out money which he is entitled to recover back. But the purpose of the injunction was to preserve the moneys that might be realized from the sale of the property of the judgment debtor until the rights of the creditors could be determined, and this purpose would have1 been disregarded, and the order of the court violated, bad the sheriff'credited plaintiff’s bid upon his judgment. The sheriff' properly refused to deliver the property until he received the money, and his refusal was made in obedience to the injunction. The damage resulting is chargeable against defendants upon their undertaking.

Judgment affirmed.