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Marshon v. Toohey

April 1915

A. MARSHON, RESPONDENT, V. P. H. TOOHEY, APPELLANT.


Appeal from the Seventh Judicial District Court, Esmeralda County; Peter J. Somers, Judge.

Thompson & Thompson, for Appellant.

John R. Kunz, for Respondent.

By the Court, Norcross, C. J.:

This is an appeal from an order refusing to set aside an injunction pendente lite. Respondent instituted an action in equity to enjoin the appellant, as constable of Goldfield township, from levying an execution upon certain personal property alleged to be owned by respondent. Appellant was proceeding to levy under and by virtue of a writ duly issued by the justice's court in and for Goldfield township to satisfy a judgment obtained in said court in a case where Joe Shirley was plaintiff and Matt Rosenthal and Al Dilly, as partners, were defendants. It is the contention of appellant in this case that the property levied upon and attempted to be sold upon execution is the property of said defendants, Rosenthal and Dilly, and not the property of the respondent, Marshon.

[1] It is alleged in the complaint in the injunction suit that to permit the levy of the writ of execution would destroy the business of respondent in conducting a certain saloon and dance-hall in the town of Goldfield, and would ruin his credit, and that he is entitled to injunctive relief, for the reason that his injury cannot be estimated in damages in an ordinary action at law. This contention of respondent was sustained by the court below, and we think it finds support in the law. While it is the general rule, where property is claimed to be wrongfully seized for execution, that the owner has an adequate remedy at law for damages, an exception exists where it is shown

[38 Nev. 248, Page 251]

that the business and credit of one not a party to the original action would be so affected as to make it difficult or impossible to estimate the injury in damages. (Freeman on Executions, 3d. vol. 3, sec. 437, p. 2347.)

[2] It is contended, however, upon the part of appellant, that the pleadings show that the property in controversy is subject to levy, for the reason that the respondent purchased the property in question from the defendants, Rosenthal and Dilly, and that the sale to respondent was void as against the creditors of the latter under the provisions of Revised Laws, secs. 3908-3912, known as the bulk sales act.

It sufficiently appears from the pleadings that this act was not complied with in the sale of the saloon and dance-hall made by Rosenthal and Dilly to respondent. If this contention is correct, the order should be set aside, for respondent would not then be in position, we think, to avail himself of the exception to the rule above announced, for his alleged title would appear prima facie void under the statute.

We shall assume in this case that the act in question is valid, for it has not been questioned, although the examination of the case which we have been required to make disclosed a division of authority as to whether this character of legislation is constitutional. The authorities upon both sides of the question will be found collated in the notes to Everett Produce Co. v. Smith, 40 Wash. 566, 82 Pac. 905, 117 Am. St. Rep. 979, 2 L. R. A. n.s. 331, 5 Ann. Cas. 798; Young v. Lamieux, 79 Conn. 434, 65 Atl. 436, 20 L. R. A. n. s. 160, 129 Am. St. Rep. 193, 8 Ann. Cas. 452; Williams v. Preslo, 84 Ohio St. 328, 95 N. E. 900, Ann. Cas. 1912c, 704. See, also, Off v. Morehead, 235 Ill. 40, 85 N. E. 264, 126 Am. St. Rep. 184, 20 L. R. A. n. s. 167, 14 Ann. Cas. 434; Re Paulis (D. C.) 144 Fed. 472.

The property seized in execution consisted in part of a stock of liquors, in part of certain furnishings used in connection with the dance-hall such as curtains, chairs, tables, dressers, rugs, bedroom supplies, and other articles of a similar character, in part of glassware and other

[38 Nev. 248, Page 252]

similar bar equipment, and $123.90 in money described in the complaint as “proceeds from and at the said bar.” The stock of liquors and the money derived from its sale we think properly the subject of execution, as property, and the proceeds thereof transferred contrary to the provisions of the statute and void as to the creditors of the former owners. The glassware, bar fixtures, and furnishings of the dance-hall and saloon do not, we think, constitute a stock or a “portion of a stock of merchandise” within the meaning of the statute. (Everett Produce Co. v. Smith, supra; Albrecht v. Cudihee, 37 Wash. 206, 79 Pac. 628; Van Patten v. Leonard, 55 Iowa, 520, 8 N. W. 334; Kolander v. Dunn, 95 Minn. 422, 104 N. W. 371; Gallus v. Elmer, 193 Mass. 106, 78 N. E. 772, 8 Ann. Cas. 1067.)

The order denying the motion to vacate the temporary injunction also continued the injunction in force “subject to the further order of the court.” As the injunction may properly be subject to modification, in accordance with the views here expressed, counsel for ...


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