Richards v. Kirkpatrick

53 Cal. 433

• Court: California Supreme Court
• Decided: July 1, 1879
• Docket: No. 6259
• Status: Published

Opinion

By the Court, Rhodes, J.:

One of the defendants, Olcese, having obtained a judgment against Ivy, caused an execution to be issued, and the other defendant, as a Constable, levied the execution upon the personal property in controversy, as the property of Ivy, and is about to sell the same in satisfaction of the execution. Two days after the levy, the plaintiff commenced an action of claim and delivery against the Constable for the recovery of the property, and, as alleged in the complaint in this action, process was issued, by virtue of which the Sheriff took possession of the property. This action was instituted to restrain the sale of the property under the execution above mentioned, and was brought two days after the action of claim and delivery.

A party is not entitled to an injunction in a case where he has a plain, speedy, and adequate remedy at law. (Leach v. Day, 27 Cal. 643; Rahm v. Minis, 40 Cal. 421.) No reason is given why the plaintiff could not obtain all the relief to which he is entitled in the pending action of claim and delivery. While the property is held by the Sheriff under the process in that action the Constable cannot sell it, and should the property be redelivered by the Sheriff to the Constable upon his execution of the statutory undertaking, that undertaking is presumptively sufficient protection to the plaintiff should he recover a judgment in that action.

Order reversed and cause remanded.