Midland Railway Co. v. Stevenson

Indiana Supreme Court

Midland Railway Co. v. Stevenson

29 N.E. 385, 130 Ind. 97, 1891 Ind. LEXIS 394

CourtIndiana Supreme Court

DecidedDecember 17, 1891

DocketNo. 16,374

StatusPublished

Cited by3 cases

This text of 29 N.E. 385 (Midland Railway Co. v. Stevenson) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Midland Railway Co. v. Stevenson, 29 N.E. 385, 130 Ind. 97, 1891 Ind. LEXIS 394 (Ind. 1891).

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Opinion

Miller, J.

This action was instituted by the appellant against the appellee to enjoin him, as constable, from selling a certain locomotive and tender, owned by the appellant, and in actual use in its business.

It is claimed by the appellant that the property levied upon is not subject to levy and sale on execution, for two reasons : 1. That the locomotive and tender, being part of the equipment of the road, are, in effect, part of the realty, and. not subject to sale by constables. 2. That the locomotive and tender, being a part of the equipment of the road in actual use, and’ essential to the performance of those duties which the appellant owes to the public, public policy forbids that they should be severed from the road to which they are appurtenant.

The view which we take of this- case renders it unnecessary for us to enter upon the discussion of either of these vexed questions.

This action, it will be observed, was brought by the company, and not by mortgagees, bond-holders, or trustees representing the rights of creditors. It will also be noted that the complaint does not claim that the executions were not issued upon valid judgments, and for indebtedness of the [98]*98company which it justly, and in good conscience, ought to pay-; does not show but that it is abundantly able to pay them. Such being the case, the appellant has no standing in a court of equity, to ask its interposition to enjoin the collection of a debt which it is not unable, but simply, unwilling, to pay. Russell v. Cleary, 105 Ind. 502; Jones v. Ewing, 107 Ind. 313; Morrison v. Jacoby, 114 Ind. 84; Hewett v. Fenstamaker, 128 Ind. 315.

Filed Dec. 17, 1891.

If the railway company was insolvent, and this suit had been instituted by the trustees for the bond-holders, as was the case in Titus v. Mabee, 25 Ill. 232, and Titus v. Ginheimer, 27 Ill. 462, a different question would be presented.

Judgment affirmed.

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Miller, J.

This action was instituted by the appellant against the appellee to enjoin him, as constable, from selling a certain locomotive and tender, owned by the appellant, and in actual use in its business.

It is claimed by the appellant that the property levied upon is not subject to levy and sale on execution, for two reasons : 1. That the locomotive and tender, being part of the equipment of the road, are, in effect, part of the realty, and. not subject to sale by constables. 2. That the locomotive and tender, being a part of the equipment of the road in actual use, and’ essential to the performance of those duties which the appellant owes to the public, public policy forbids that they should be severed from the road to which they are appurtenant.

The view which we take of this- case renders it unnecessary for us to enter upon the discussion of either of these vexed questions.

This action, it will be observed, was brought by the company, and not by mortgagees, bond-holders, or trustees representing the rights of creditors. It will also be noted that the complaint does not claim that the executions were not issued upon valid judgments, and for indebtedness of the [98]*98company which it justly, and in good conscience, ought to pay-; does not show but that it is abundantly able to pay them. Such being the case, the appellant has no standing in a court of equity, to ask its interposition to enjoin the collection of a debt which it is not unable, but simply, unwilling, to pay. Russell v. Cleary, 105 Ind. 502; Jones v. Ewing, 107 Ind. 313; Morrison v. Jacoby, 114 Ind. 84; Hewett v. Fenstamaker, 128 Ind. 315.

Filed Dec. 17, 1891.

If the railway company was insolvent, and this suit had been instituted by the trustees for the bond-holders, as was the case in Titus v. Mabee, 25 Ill. 232, and Titus v. Ginheimer, 27 Ill. 462, a different question would be presented.

Judgment affirmed.

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29 N.E. 385, 130 Ind. 97, 1891 Ind. LEXIS 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/midland-railway-co-v-stevenson-ind-1891.

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