White v. Semper

Ohio Circuit Courts

White v. Semper

8 Ohio C.C. 346

DecidedJanuary 15, 1894

StatusPublished

This text of 8 Ohio C.C. 346 (White v. Semper) is published on Counsel Stack Legal Research, covering Ohio Circuit Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

White v. Semper, 8 Ohio C.C. 346 (Ohio Super. Ct. 1894).

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Opinion

Smith, J,

We are of the opinion that the demurrer of the defendants to the petition of the plaintiffs is well .taken, and niustbe sustained on several grounds. The allegations of the petition, in substance, are that the defendants, Semper & Semper, 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 still 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#

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 mere averment that she would suffer great and irreparable-injury by the sale thereof is wholly insufficient. (31 Ohio St. 420.)

Second. — The plaintiff on the averments of the petition had an adequate remedy at law. She might set up the fraud in [347]*347procuring the mortgage, or the want of consideration therefor in the replevin suit, and if successful, be entitled 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 of equity to obtain relief, which is open to her in the other tribunal. If no amendment is made to the petition, the action will be dismissed.

E. Potter Dustin and Jas. S. Meyers, for plaintiff. Wm. H. Pope, contra.

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Smith, J,

We are of the opinion that the demurrer of the defendants to the petition of the plaintiffs is well .taken, and niustbe sustained on several grounds. The allegations of the petition, in substance, are that the defendants, Semper & Semper, 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 still 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#

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 mere averment that she would suffer great and irreparable-injury by the sale thereof is wholly insufficient. (31 Ohio St. 420.)

Second. — The plaintiff on the averments of the petition had an adequate remedy at law. She might set up the fraud in [347]*347procuring the mortgage, or the want of consideration therefor in the replevin suit, and if successful, be entitled 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 of equity to obtain relief, which is open to her in the other tribunal. If no amendment is made to the petition, the action will be dismissed.

E. Potter Dustin and Jas. S. Meyers, for plaintiff. Wm. H. Pope, contra.

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Bluebook (online)

8 Ohio C.C. 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-semper-ohiocirct-1894.