48 Ind. 537 | Ind. | 1874
Zeph Hollingsworth brought suit against James Trucblood, Andrew E. Caffey, and George ~W. Parker, sheriff of Marion county, for an injunction.
The complaint seems to have been hastily written. The averments are not made in their proper order, nor are they clearly stated. The substance of it, however, placing the facts according to their proper arrangement, may be stated as follows:
That, on the 16th day of July, 1868, John Carlisle made a’ lease of certain parts of lots in Indianapolis, describing them, to Layton Mills and John Lacy, for the term of two years from April 1st, 1868; that, on the 12th day of November, 1868,. Lacy assigned his interest in the lease to Hollings
A demurrer was filed to the complaint, for want of sufficient facts to maintain the action. The demurrer was overruled, and exceptions taken. Proceedings were then had, which resulted in an injunction against the appellants. Appeal to this court.
The first error assigned is, that the court erred in overruling the demurrer to the complaint. This error is well taken. No written instrument, unless some pleading is founded upon it,, is properly an exhibit. The execution mentioned in the complaint is unnecessarily filed. We can not, therefore, notice it-There is nothing before us for consideration, as to the threatened sale, except the naked averment in the complaint. It is defective. It does not inform us who were the parties to the-
While it was not incumbent on Hollingsworth to set forth the judgment and execution, under which the alleged sale was about to be made, with as much particularity as if he claimed under them, yet it was necessary for him to show them with sufficient particularity to give color of right in the sheriff to make the levy and sale. So with the trust. It should have been sufficiently alleged to give it color of right in Layton Mills, otherwise there is nothing to enjoin. Courts do not enjoin empty threats. There must be enough substance shown to presumptively be able to do the injury feared. In these respects the'complaint is insufficient. Knight v. Flatrock, 45 Ind. 134; Alexander v. Mullen, 42 Ind. 393.
The judgment is reversed, and the cause remanded, etc.
Petition for a rehearing overruled.