October 20, 2012

Moore's Adm'r et al., vs. Sheppard et al., Wayne, 1858



Moore's Administrator, &c., vs. Sheppard, &c.


58 Ky. 97; 1858 Ky. LEXIS 20; 1 Met. 97

June 24, 1858, Decided


DISPOSITION: Judgment affirmed.

COUNSEL: A. J. JAMES for appellants--

1. The petition contained an original substantive cause of action. The scheme and purpose and preparation to sell and remove the slaves sued for out of the state, connected with the removal of the defendants, threatened irreparable injury to the rights of the plaintiffs, which they had a right, by original action, to call on the chancellor to prevent.

2. This was not the same cause of action contained in the petition of the first suit. That was an action for the possession of the property and an account for its profits. This, an action to injoin a threatened wrong in regard to the same property, but arising since the institution of the original action, and constituting of itself a cause of action of which the chancellor had original and absolute jurisdiction. (2 Story's Equity, p. 154, sec. 861, 862, and p. 191, sec. 908.)

3. The precise relief sought in this action, is, that the perpetration of the threatened wrong--the commission of the irreparable injury--be injoined. This was asked for as the final judgment in the action.

An injunction is authorized by the Civil Code, and [**2]  may be allowed as a provisional remedy; or the injunction sought may be the final judgment in the action. (Civil Code, pp. 81, 82, sec. 298, 299.)

The injunction--the command of the court operating upon the defendants, requiring them to refrain from the contemplated injury--being the relief sought in this action, was so distinct and separate from the relief of the first action, that it might well constitute an independent and separate cause of action, upon which a judgment might be rendered separate and independent of the first.

4. Part of the property sought to be secured, as well as some of the defendants against whom relief was asked, were found in the county of Wayne, which appearing by the officer's return, gave that court jurisdiction of the subject-matter. The person, or the thing, in an action like this, will give jurisdiction.

5. There was not an improper joinder of parties, because Mrs. Sheppard, wife of Isaac Sheppard, was originally the custodian of all the property, and the other defendants were her bailees, and acting in concert with her, and with each other, to do the mischief complained of.

E. S. VANWINKLE for appellees--

1. The demurrer was [**3]  properly sustained, as it appeared from the petition that another action was pending in the Clinton circuit court between the same parties for the same cause. (Civil Code, sec. 120.)

2. The attachment is not a substantive cause of action, but simply a provisional remedy, and can only be had in the court where the action is brought or is pending at the time. (Civil Code, sec. 222.)

3. It may be insisted that an injunction is of itself an action, and therefore this is not the same cause of action as that pending in the Clinton court. Such is not the case. (Civil Code, sections 299, 300, 304, 315.)

TIMOLEON CRAVENS on same side--

A provisional remedy is incidental to the action in which it is sought, and cannot be obtained in any other court than that in which the action is pending.

The order for the injunction in this case could not properly be granted by the county judge, (Civil Code, section 300,) but could only be granted by the Clinton circuit court, or a circuit judge. There was no notice of the application for the injunction, (Ib., sec. 304,) and no injunction bond executed. (Ib., sec. 307.)

No prayer for an attachment is made in the petition, and [**4]  no statutory ground for one alleged.

An attachment against specific personal property may be granted upon certain conditions mentioned in Civil Code, sections 273, 274, 275, et seq., but cannot be issued by the clerk, as was done in this case, unless an order of the circuit judge accompanies the petition. 

JUDGES: JUDGE DUVALL, DELIVERED THE OPINION OF THE COURT. (Chief Justice WHEAT did not preside in this case.) 


 [*97]  The facts are stated in the opinion of the court.

 [*99]  JUDGE DUVALL DELIVERED THE OPINION OF THE COURT. (Chief Justice WHEAT did not preside in this case.)

The appellants filed this petition in the Wayne circuit court, alleging, in substance, that they had previously instituted a suit in the same court, against the same parties, for the recovery of land, slaves, and other effects, to which they were entitled, and which the appellees wrongfully withheld; that, by change of venue, the previous suit had been removed to, and was still pending and undetermined in, the Clinton circuit court. That since the commencement of that suit, it had been ascertained that the appellees were attempting and intended to sell the slaves sued for in their [**5]  possession, and remove from the state of Kentucky, and thereby defeat the objects of that suit. They therefore prayed for an attachment, or such other remedy as  [*100]  they were entitled to, and that this suit might be consolidated with the original action.

The record of the original suit was referred to as an exhibit, and is copied into this record.

The appellees demurred to the petition, and moved to discharge the attachment and injunction which had issued. The demurrer was sustained, the attachment and injunction discharged, and the petition dismissed without prejudice, &c.

Whether this ruling of the court was erroneous or not, is the question to be decided.

By the Civil Code, (section 120,) it is provided that the defendant may demur to the petition when it appears on its face that there is another action pending between the same parties for the same cause.

Now, it is perfectly clear, that so far as the petition in this case set forth a cause of action at all, it was identically the same cause of action upon which the original suit was founded. The parties were the same; the property sought to be recovered, and the title of the appellants thereto, as well as the [**6]  alleged wrongful conversion and detention of it by the appellees, were also the same in both proceedings, all of which appeared on the face of the petition. The result is, that under the section of the Code referred to, the demurrer was properly sustained.

But it is insisted that the petition set out a new cause of action, different from and independent of that for which the original suit was brought, and upon which the appellants were entitled to relief; and that this new cause of action consisted of the alleged intention on the part of the appellees to sell the property sued for, and to remove from the state.

It is manifest that this argument confounds two things essentially different. The cause of action in this case was the right of the appellants to the possession of the property sued for, and the wrongful detention of it by the appellees. The intention of the latter to sell it and to remove from the state cannot, with any technical propriety, be denominated a cause of action, even in the most comprehensive sense of the phrase, as used and understood in our system of practice. It is nothing more than a ground for a provisional remedy--an attachment, or an  [*101]  injunction, [**7]  or both. This provisional remedy is merely ancillary and incidental to the action in which it is sought. It may be had either at or after the commencement of the action in the cases and on the grounds enumerated in the Code. And that the remedy can only be obtained in the court in which the action was brought or is pending at the time, there can be no doubt. It certainly is unnecessary to point out the inconvenience and confusion that would result from allowing an action to be prosecuted in one county, and an attachment, injunction, or other provisional remedy affecting the parties to the action and the property involved in it, to be obtained and prosecuted in the court of a different county. Suppose, in this case, that the appellants had, by sufficient proof, sustained their grounds for the attachment in the Wayne circuit court, and had failed to establish their right in the Clinton circuit court to the property sued for, and that, consequently, judgment in bar of their action had been rendered in that case, what would have been the judgment of the Wayne circuit court? Would not the disposition to be made of the attachment and injunction, necessarily depend upon the final judgment [**8]  in the original action?

But it is useless to pursue this discussion. It is perfectly manifest, in every aspect of the case, that the judgment complained of was right, and it is therefore affirmed.

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