Stewart v. Erpelding

Oregon Supreme Court

Stewart v. Erpelding

148 P. 1129, 76 Or. 309, 1915 Ore. LEXIS 279

DecidedMay 25, 1915

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This text of 148 P. 1129 (Stewart v. Erpelding) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Stewart v. Erpelding, 148 P. 1129, 76 Or. 309, 1915 Ore. LEXIS 279 (Or. 1915).

Pincite

Opinion

Mr. Justice Benson

delivered tbe opinion of tbe court.

There are some 22 assignments of error, but we do not deem it necessary to consider more than tbe sufficiency of tbe complaint and tbe proof in support thereof.

1. The complaint does not state facts sufficient to give a court of equity jurisdiction. There is no fact alleged wbicb shows that tbe personal property is in any way attached to tbe realty, or that tbe proposed manner of removal would in any way injure either tbe realty or tbe personalty. Tbe allegation of irreparable injury, without a recital of any facts which would indicate tbe probability thereof, is a mere conclusion of law. Tbe insolvency of tbe defendants is [311]*311not of itself sufficient to invoke the intervention of a court of equity: Parker v. Furlong, 37 Or. 251 (62 Pac. 490).

2. But, if the allegations of the complaint were sufficient, there is a total lack of evidence to sustain them. There is not a syllable of testimony as to the possible injury of the personal property in such removal, nor is there a particle of evidence in the record as to the financial ability of the defendants or either of them. The entire testimony is directed to the question of ownership and right of possession. This is a question with which we are not at this time concerned. The plaintiff doubtless has a remedy for the recovery of the property, if it be his, hut not in equity.

It follows that the decree must he reversed and the suit dismissed; and it is so ordered.

Reversed. Shit Dismissed.

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Mr. Justice Benson

delivered tbe opinion of tbe court.

There are some 22 assignments of error, but we do not deem it necessary to consider more than tbe sufficiency of tbe complaint and tbe proof in support thereof.

1. The complaint does not state facts sufficient to give a court of equity jurisdiction. There is no fact alleged wbicb shows that tbe personal property is in any way attached to tbe realty, or that tbe proposed manner of removal would in any way injure either tbe realty or tbe personalty. Tbe allegation of irreparable injury, without a recital of any facts which would indicate tbe probability thereof, is a mere conclusion of law. Tbe insolvency of tbe defendants is [311]*311not of itself sufficient to invoke the intervention of a court of equity: Parker v. Furlong, 37 Or. 251 (62 Pac. 490).

2. But, if the allegations of the complaint were sufficient, there is a total lack of evidence to sustain them. There is not a syllable of testimony as to the possible injury of the personal property in such removal, nor is there a particle of evidence in the record as to the financial ability of the defendants or either of them. The entire testimony is directed to the question of ownership and right of possession. This is a question with which we are not at this time concerned. The plaintiff doubtless has a remedy for the recovery of the property, if it be his, hut not in equity.

It follows that the decree must he reversed and the suit dismissed; and it is so ordered.

Reversed. Shit Dismissed.

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148 P. 1129, 76 Or. 309, 1915 Ore. LEXIS 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-erpelding-or-1915.

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