164 Ind. 315 | Ind. | 1905
Appellee sought by this action to secure a restraining order and permanent injunction preventing appellants from selling, controlling and retaining possession of a certain stock of goods. The complaint consists of two paragraphs, the first of which is verified, and was filed in vacation on June 23, 1903, and a restraining order thereon was issued by the judge in chambers, and the defendants
The first paragraph of the complaint alleges “that the plaintiff now is, and since the-day of January, 1903, has been, the owner of the following described personal property situated in the county of Jasper, State of Indiana, to wit, a general stock of merchandise, consisting of dry-goods, groceries, notions, and also the fixtures connected therewith, located in a certain frame building in the town of Eairoaks, State and county aforesaid; that said*building is owned by one Sarah E. Rosier, and is located on the street west of the railroad, facing the railroad.” The pleading then avers that the plaintiff, as the owner of said stock of goods and in control and possession thereof, “was conducting a profitable and prosperous mercantile business in said town up to and until the 18th day of June, 1903; that on said day the defendants unlawfully and without right, in the absence of plaintiff, took possession and control of said stock-and business, and the building wherein said business was being conducted, closed and locked said building, and
1. The sufficiency of each paragraph of the complaint on demurrer is forcibly assailed by counsel for appellants. It is manifest that, while the first paragraph of the complaint states some facts, it also contains conclusions without any statement of the probative facts upon which they may be said to be based. The general, and in fact the safe, rule to be observed by a pleader in all cases is to state or allege facts, and not mere conclusions. Gum-Elastic, etc., Co. v. Mexico Pub. Co. (1895), 140 Ind. 158, 30 L. R. A. 700, and authorities there cited; Stafford v. St. J ofm, ante, 277. By reason of the harshness of the remedy by injunction, a strict adherence to this rule of pleading is required. Wabash R. Co. v. Engleman (1903), 160 Ind. 329, and authorities cited; 10 Ency. Pl. and Pr., 925, 926. In construing the pleading in controversy, and in determining the rights of plaintiff thereunder, we must look.to and consider the facts as alleged. His rights can be tested only by the facts
2. It will be seen that the complaint discloses that the defendants, before the commencement of the action, had taken possession and control of the property in controversy, and the building wherein it was situated, and had closed and locked said building. In respect to the acts committed before this suit was instituted, an injunction would be of no avail, for the rule is well settled that the writ will not be granted to prevent acts already committed, for, under such circumstances, the granting thereof would be useless. Heinl v. City of Terre Haute (1903), 161 Ind. 44,. and cases there cited.
3. The evident theory of the first paragraph of the complaint is to obtain an injunction to prevent defendants from retaining possession and control of the property, and to prevent the threatened sale thereof. The pleading discloses that the plaintiff is the owner of the property which is alleged to be a general stock of merchandise, consisting of dry-goods, groceries, notions, and fixtures connected therewith, located in a certain frame building in the town of Eairoaks, which building is owned by one Sarah E. Ilesler. It will be observed that there are no facts to show that the property in question is of any peculiar or particular value to the plaintiff. Allen v. Winstandly (1893), 135 Ind. 105.
In fact there is an entire absence of any positive averments disclosing the value of the property for any purpose. For aught appearing in the pleading the goods in controversy may be of very little value. There are no facts al
The second paragraph of complaint is substantially the same as the first, and it is open to the same objections. Counsel for appellee cite a number of authorities in support of the proposition that an injunction will lie where there is not an adequate remedy at law. The primary question, however, with which we have to deal in this case, is: has appellee, aside from the conclusions and recitals in
4. Appellants, having entered their appearance to the action and demurred to the complaint before the judge in chambers, could not thereafter plead want of jurisdiction over their person. By demurring to the complaint they submitted their persons generally to the jurisdiction of the court, and thereby waived any question relative to such jurisdiction. Slauter v. Hollowell (1883), 90 Ind. 286; Chandler v. Citizens Nat. Bank (1898), 149 Ind. 601.
5. The second paragraph of appellants’ answer to the complaint is in the nature of an argumentative denial. If any of the facts therein alleged were admissible in evidence, they could have been introduced under the general denial, which constituted the first paragraph of the answer. Therefore, under the circumstances, sustaining the demurrer to the paragraph in question was harmless. Jeffersonville Water Sup. Co. v. Riter (1897), 146 Ind. 521.
Eor the error of the court in overruling the demurrer to each paragraph of the complaint, the judgment is reversed, with instructions to the lower court to sustain said demurrer.