White v. Semper

Hamilton Circuit Court

White v. Semper

4 Ohio Cir. Dec. 408

DecidedJanuary 15, 1894

StatusPublished

This text of 4 Ohio Cir. Dec. 408 (White v. Semper) is published on Counsel Stack Legal Research, covering Hamilton Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

White v. Semper, 4 Ohio Cir. Dec. 408 (Ohio Super. Ct. 1894).

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Opinion

SmrTh, J.

We are of the opinion that the demurrer of the. defendants to the petition of the plaintiffs is well taken, and must be sustained on several grounds. The allegations of the petition, in substance, are that the defendants, Semper & Semper, partners, by fraud, obtained a chattel mortgage from her on many articles of personal property, and afterwards, on January 26, 1893,-had replevined the same in an action brought by them against her before a justice of-the peace, which is [409]*409still pending; and that they were about to sell the same in an auction house at a great sacrifice, whereby she will suffer great and irreparable loss; and the-prayer is for an injunction against the prosecution of such suit, and that the; mortgage be declared void.

E. Pot t r Dustin and Jas. S. Meyers, for plaintiff. Wm. H. Pope, Contra.

It must be presumed that in the replevin suit the law was complied with„ and that the property replevined was not delivered to the plaintiff therein until plaintiffs had given bond according to law, which would completely protect the-rights of the defendant therein, there being no allegation in the petition to show that the property so replevined had other than a pecuniary value; and the mereaverment that she would suffer great and irreparable injury by the sale thereof is wholly insufficient. 31 O. S., 420.

Second. — The plaintiff on the averments of the petition had an adequate remedy at law. She might set up the fraud in procuring the mortgage, or the want of consideration therefor in the replevin suit, and if successful, be entitled1 to a verdict and judgment in that action; and the replevin statute itself gives; her the right, if the property has other than pecuniary value, to require the constable to retain it; or she was entitled to give a counter-bond, and retain or be restored to its possession. 88 O. L., 276. With all these legal remedies in an action already pending, she is not at liberty to resort to a court ot equity to obtain relief, which is open to her in the other tribunal. If no amendment is-made to the ' ition, the action will be dismissed.

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SmrTh, J.

We are of the opinion that the demurrer of the. defendants to the petition of the plaintiffs is well taken, and must be sustained on several grounds. The allegations of the petition, in substance, are that the defendants, Semper & Semper, partners, by fraud, obtained a chattel mortgage from her on many articles of personal property, and afterwards, on January 26, 1893,-had replevined the same in an action brought by them against her before a justice of-the peace, which is [409]*409still pending; and that they were about to sell the same in an auction house at a great sacrifice, whereby she will suffer great and irreparable loss; and the-prayer is for an injunction against the prosecution of such suit, and that the; mortgage be declared void.

E. Pot t r Dustin and Jas. S. Meyers, for plaintiff. Wm. H. Pope, Contra.

It must be presumed that in the replevin suit the law was complied with„ and that the property replevined was not delivered to the plaintiff therein until plaintiffs had given bond according to law, which would completely protect the-rights of the defendant therein, there being no allegation in the petition to show that the property so replevined had other than a pecuniary value; and the mereaverment that she would suffer great and irreparable injury by the sale thereof is wholly insufficient. 31 O. S., 420.

Second. — The plaintiff on the averments of the petition had an adequate remedy at law. She might set up the fraud in procuring the mortgage, or the want of consideration therefor in the replevin suit, and if successful, be entitled1 to a verdict and judgment in that action; and the replevin statute itself gives; her the right, if the property has other than pecuniary value, to require the constable to retain it; or she was entitled to give a counter-bond, and retain or be restored to its possession. 88 O. L., 276. With all these legal remedies in an action already pending, she is not at liberty to resort to a court ot equity to obtain relief, which is open to her in the other tribunal. If no amendment is-made to the ' ition, the action will be dismissed.

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4 Ohio Cir. Dec. 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-semper-ohcircthamilton-1894.