130 F. 246 | U.S. Circuit Court for the District of Western Kentucky | 1903
The defendant has demurred to the bill of complaint, and for cause of demurrer insists that complainant’s remedy at law is plain, adequate, and complete. In support of the demurrer it is urged that the writ of mandamus is the appropriate legal remedy as against the defendant, and that the right of the complainant to the remedy on the case made by the bill is plain and manifest; but the court is clearly of opinion that it must be ruled otherwise under section 716, Rev. St. U. S. [U. S. Comp. St. 1901, p. 580], as construed by the Supreme Court in the case of Rosenbaum v. Bauer, 120 U. S. 450, 7 Sup. Ct. 633, 30 L. Ed. 743, and many earlier cases.
It is also insisted that an action at law for damages against the defendant would afford the complainant a complete remedy. The rule appears to be that to oust the jurisdiction in equity the remedy at law must be as prompt and efficacious as that in equity. Springfield, etc., v. Barnard & Leas Co., etc., 81 Fed. 265, 26 C. C. A. 389; Dow v. Berry (C. C.) 18 Fed. 125. Judged by this test, it seems to the court that the averments of the bill present a case where the remedy at law might be unsatisfactory and vexatious. It might be much delayed if every one of the evidently numerous persons with whom complainant has contracted should see fit, as they might, to sue him for a breach of this contract — a breach made inevitable by the defendant’s own act. All this may be well avoided by the equitable remedy now invoked, which would not only compel the defendant to perform what, on the face of the bill, appears to be a plain duty, but would also obviate the possibility of a multiplicity of suits against the complainant. If there were nothing in the case except the loss of a few water carts and mules, it might be quite different. . But there are many other things, and some strictness of ruling against a defendant who appears to owe a very plain duty (if the averments of the bill are true) might well be excused at this stage of the proceeding, whatever may be proper when all the facts are developed. The probability that any multiplicity of suits which might be brought against the complainant would be the direct result of defendant’s own wrongdoing-in the premises would seem to enforce this view. Besides, both the plainness and the adequacy of the remedy at law may be greatly doubted in view of the decision of the Court of Appeals of Kentucky in the case of Louisville Water Co. v. Hamilton, 81 Ky. 517, to the effect that the defendant’s property cannot be seized by collecting-officers, but that its liabilities must be enforced in equity.
At all events, the court is of opinion that the demurrer to the bill of complaint should be and it is overruled.