Talk:North v. Peters

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Edition:	North v. Peters, and levied upon as the property of the firm of P M Lund & Co, and to restrain and enjoin him from again seizing and levying upon the same property as the property of that firm, all of which the plaintiff himself claimed to own The amended complaint alleged that plaintiff was, and since November 12, 1883, had been, the owner of a stock of merchandise worth $10,000, which was situated in a store lately occupied by P M Lund & Co, in Canton, Dak T; that on November 15, 1883, the clerk of the court in which this suit was brought issued pretended and informal writs of attachment against the property of Lund & Co, and was about to issue many more such writs for the purpose of annoying and vexing plaintiff; that the defendant, the sheriff of the county, had maliciously and excessively levied those writs upon the property of plaintiff, above described, well knowing it to be plaintiff's property, and threatened to levy many more, and had entered into a conspiracy with divers persons to annoy, oppress, and defraud the plaintiff; that neither sai Lu nd & Co nor any one else but plaintiff had any right, title, or interest in and to said property; that the property levied upon had been purchased for the current season, and was of a perishable nature; that plaintiff had to borrow some money in order to make the purchase, and depended on his sales to repay the same; that he was an old man, with a family partly dependent upon him for support, and had always borne a good name and credit which was about to be destroyed by the acts of the defendant, complained of; that unless the sheriff was restrained from levying those writs, irreparable injury and damage would result to him; that he feared he would not be able to give the bonds required to retake the property; that the sheriff's official bond was inadequate to afford him protection; that if he was not allowed to pursue his business peaceably, the injury to him could not be amply compensated in damages; that the property was situated in a wooden building, among a row of similar buildings, and was insured for $8,000; that, by reason of the premises, the insurance companies were about to cancel said insurance, and other companies would refuse to carry the risk, by reason of the litigation; that if the property should be destroyed by fire, great and irreparable damage would result to the plaintiff; that plaintiff was the bona fide owner of the property levied upon, having purchased it from Lund & Co, together with the good-will and trade of that firm, for a valuable consideration, and before purchasing caused the records of the county to be searched to ascertain whether there were any claims, liens, or incumbrances against the property; and that the records were clear from any such claims or liens, and Lund & Co informed plaintiff that there was nothing due for the property, but that the same was free and clear The prayer of the bill was for an injunction to restrain the defendant, or any one acting through or for him, from interfering with the property in any way whatever, and to compel him to surrender and replace the property which he had already levied upon, and for other and further relief Upon the filing of the complaint, accompanied by an affidavit of the plaintiff setting forth a more detailed account of the injury complained of, the court issued a temporary restraining order The defendant thereupon filed his answer, denying all the material averments of the bill, except the one relating to the levy upon the property With respect to that averment, by way of justification, he alleged that, as sheriff of Lincoln county, he had received certain specified writs of attachment directed to him, requiring him to attach the property of Lund & Co, and that, under and by virtue of those writs, he had levied upon the property described in the complaint, as the property of Lund & Co; and that it was in fact the property of Lund & Co, having been transferred to the plaintiff by a pretended and fraudulent sale made for the purpose of putting it beyond the reach of the creditors of Lund & Co, who had sued out the writs of attachment, which sale was known to plaintiff to be fraudulent The case coming on for trial, the question as to the validity of the sale from Lund & Co to the plaintiff was, by order of the court, submitted to a jury, which found the issue in favor of the plaintiff, thus recognizing the validity of the sale At the trial the allegations of fraud, malice, oppression, and collusion, on the part of the defendant, were stricken from the complaint, upon the motion of plaintiff's attorney, and no evidence was introduced tending to show that the writs of attachment were pretended and informal The defendant then moved to dismiss the complaint and action, which motion the court overruled, and, upon consideration of the verdict of the jury and arguments of counsel, it made and filed the following findings of fact and conclusions of law: .
Source:	North v. Peters from http://bulk.resource.org/courts.gov/c/US/138
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