Fletcher v. Vandusen

Supreme Court of Iowa

Fletcher v. Vandusen

3 N.W. 488, 52 Iowa 448

DecidedDecember 5, 1879

StatusPublished

This text of 3 N.W. 488 (Fletcher v. Vandusen) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fletcher v. Vandusen, 3 N.W. 488, 52 Iowa 448 (iowa 1879).

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Opinion

Dak, J.’

— I. It is urged at great length and with much earnestness' that the petition is not supported by affidavit, within the meaning of section 3388 of the Code. It is 'insisted, that a verification which in ordinary cases would be 'sufficient for a pleading, is not sufficient when the petition asks an injunction. We are of opinion that the motion to 'vacate the injunction does not fairly raise or present the question of the sufficiency of the verification.

1. partnicrme’ftotfni0-’ junction. II. It is claimed that the motion to dissolve the injunction should have been sustained, because at the time the injunction was issue<3 110 order for the appointment of a receiver of the property had been made. The record shows that the hearing of the application 'for the appointment of a receiver was jiostponed until the 20th of March, to be heard on notice to the defendants. The appointment of a receiver could not properly be made without notice. The motion to dissolve was not filed until June 17th. It is not shown that a receiver had not then been appointed. For aught that appears from the record the property was in the hands of a receiver at the time the motion to dissolve was 'filed. This objection to the continuance of the injunction is without merit.

III. It is urged that the petition does not allege facts authorizing the issuance of an injunction. The position is not tenable. The petition shows the plaintiff’s interest in the 'property as administratrix, the insolvency of the principal 'defendants, that they are disposing of the property, and appropriating it to their own use, and that, unless the defendants be restrained by injunction as prayed, the property, effects and ■assets of the co-partnership are in danger of being wholly lost to the co-partnership and to the plaintiff as administratrix of the estate of J. B. Fletcher, deceased. These allegations ¡authorize'the issuance of an injunction as prayed.

Affirmed.

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Dak, J.’

— I. It is urged at great length and with much earnestness' that the petition is not supported by affidavit, within the meaning of section 3388 of the Code. It is 'insisted, that a verification which in ordinary cases would be 'sufficient for a pleading, is not sufficient when the petition asks an injunction. We are of opinion that the motion to 'vacate the injunction does not fairly raise or present the question of the sufficiency of the verification.

1. partnicrme’ftotfni0-’ junction. II. It is claimed that the motion to dissolve the injunction should have been sustained, because at the time the injunction was issue<3 110 order for the appointment of a receiver of the property had been made. The record shows that the hearing of the application 'for the appointment of a receiver was jiostponed until the 20th of March, to be heard on notice to the defendants. The appointment of a receiver could not properly be made without notice. The motion to dissolve was not filed until June 17th. It is not shown that a receiver had not then been appointed. For aught that appears from the record the property was in the hands of a receiver at the time the motion to dissolve was 'filed. This objection to the continuance of the injunction is without merit.

III. It is urged that the petition does not allege facts authorizing the issuance of an injunction. The position is not tenable. The petition shows the plaintiff’s interest in the 'property as administratrix, the insolvency of the principal 'defendants, that they are disposing of the property, and appropriating it to their own use, and that, unless the defendants be restrained by injunction as prayed, the property, effects and ■assets of the co-partnership are in danger of being wholly lost to the co-partnership and to the plaintiff as administratrix of the estate of J. B. Fletcher, deceased. These allegations ¡authorize'the issuance of an injunction as prayed.

Affirmed.

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Bluebook (online)

3 N.W. 488, 52 Iowa 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fletcher-v-vandusen-iowa-1879.