Halley v. Ingersoll

Citations

• 14 S.D. 7
• 84 N.W. 201
• 1900 S.D. LEXIS 1

Syllabus

<p>1. S., a material man, was the owner of, and had filed suits on, four choses in action and mechanics’ liens against a railroad company, its contractors and subcontractors, which actions were pending in the federal court, S. was indebted to parties represented by plaintiff largely in excess of the amount of the choses in action, and had assigned them to plaintiff as collateral security for the indebtedness. Other parties had secured judgments against S., and had caused the defendant, as sheriff to levy on the choses in action, and the complaint alleged that he was about to sell the same, which sale would greatly embarrass plaintiff in the collection of the choses in action, and would lead to vexatous delays and a multiplicity of suits, as, even if S. should recover judgment thereon, the railroad company would refuse to pay until it was determined who was entitled to the judgment. Held, that a complaint alleging such facts was sufficient to entitle plaintiff to an injunction, since such sale would involve plaintiff in other protracted litigation, and would cause him great difficulty in proving his damages, thereby causing plaintiff irreparable injury without a plain and adequate remedy at law, and hence a demurrer to the complaint was properly overruled.</p> <p>2. Where a defendant has appeared and demurred to the complaint, and, the demurrer having been overruled, has declined to answer, in the absence of any question as to damages, Comp. Laws, § 5025, providing , that, where a defendant has appeared in an action, he shall be entitled to eight days’ notice of any application for judgment, does not apply, since the plaintiff was entitled to judgment without further proof.</p>