North v. Peters/Opinion of the Court
There are 32 assignments of error found in the record, which it is not necessary to discuss in detail. We are of opinion that the findings of fact by the district court, taken in connection with the verdict of the jury upon the sole issue submitted to it, entitled the appellee to the equitable relief sought, and are sufficient to sustain the judgment of the supreme court of the territory. They fully establish the allegations of the complaint that the appellee, Peters, was the true owner of the stock of merchandise levied upon and seized as the property of P. M. Lund & Co.; that he bought the stock from Lund & Co., paying the adequate consideration of $10,000 and upwards for the entire stock, including the good-will of the business carried on by Lund & Co. at the same stand; that, though Lund & Co. sold the stock for the purpose of defrauding their creditors, the appellee was no party to the fraud, and had no knowledge of the purpose of Lund & Co. in disposing of said stock and business; that, at the time the appellant North, as sheriff of the county of Lincoln, levied upon the goods and merchandise, the appellee was in possession of them, and was conducting a profitable business; that the acts of the sheriff, in levying upon and seizing the property, by virtue of the writs of attachment, described in the complaint, and the threatened acts, under and by virtue of other writs, unless restrained by the court, would have destroyed the appellee's business; that it would be extremely difficult to ascertain or estimate the pecuniary injury the appellee would sustain; that the merchandise and the business above mentioned comprised all the property owned by the appellee, and all his pecuniary resources; that the appellant, North, as sheriff of Lincoln county, at the time the suit was brought, had in his hands a large number of writs of attachment, which he threatened to levy upon the merchandise belonging to the appellee; and that creditors of P. M. Lund & Co. were about to sue out writs of attachment, and place them in defendant's hands to be levied on the same property. Upon these facts the judgment of the supreme court of the territory must be affirmed, unless the appellant can show some legal ground for making this particular case an exception to the general rules upon the subject of equitable relief.

The main ground relied on by the appellant is that the relief sought should be refused, because the appellee had a plain, adequate, and complete remedy at law; to-wit, either the action of trespass or replevin. The answer to this is that the measure of damages in an action of trespass could not have exceeded the value of the property seized, with interest thereon from the date of the seizure; and that the only remedy in an action of replevin would havebee n limited to a recovery of the property, and damages for its detention, with costs. It does not need argument to show that neither of these actions would afford as complete, prompt, and efficient a remedy for the destruction of the business which, with the goods levied upon, constituted the appellee's entire estate and pecuniary resources, as would be furnished by a court of equity in preventing such an injury. The case of Watson v. Sutherland, 5 Wall. 74, 78, 79, is, in its material facts, similar to this case. In that case a bill was filed by one Sutherland to enjoin the further prosecution of certain writs of Fieri facias levied by the sheriff, Watson, on a lot of goods claimed to belong exclusively to the plaintiff, so as to prevent what the plaintiff alleged to be an irreparable injury; to-wit, the ruin of his business as a merchant. The defense set up was, as in this case, that the injunction should have been refused, because the action of trespass furnished a complete and adequate remedy at law. In answer the court, Mr. Justice DAVIS delivering the opinion, said: 'How could Sutherland be compensated at law, for the injuries he would suffer, should the grievances of which he complains be consummated? * * * Commercial ruin to Sutherland might therefore be the effect of closing his store and selling his goods, and yet the common law fail to reach the mischief. To prevent a consequence like this, a court of equity steps in, arrests the proceedings in limine; brings the parties before it; hears their allegations and proofs; and decrees, either that the proceedings shall be unrestrained, or else perpetually enjoined.'

It is further argued by the appellant that the district court, after making and filing the first findings of fact and conclusions of law, and ordering judgment thereon, which was duly entered, had not the power, after the term had closed, to make additional findings in support of its judgment, upon a motion for a new trial. We think this point not well taken. The appellant, in support of his motion for a new trial, claimed that the court had omitted to find upon certain material issues in the case. The court refused to grant the motion, and made additional findings more explicitly responsive to the questions presented by the pleadings. We are of opinion that the court, if, in the consideration of such a motion, it considers that material findings have been omitted or imperfectly stated, has authority to make such additional findings as will cure the omission, so that its record will be amended, and made to conform to the truth. When the court below made its decree, it made a concurrent order giving the defendant (the appellant) until a certain day within which to prepare and serve his motion for a new trial. The record, therefore, had not passed out of the control of the court by appeal when those additional findings were made. Counsel for appellant is mistaken in saying that the rule of practice, under the Dakota Code of Civil Procedure, (sections 266, 267,) as established by the decisions of the supreme court of that territory, does not allow the trial court to make additional findings after judgment has been ordered and entered. The cases cited are inapplicable, and do not sustain the position assumed. None of them were cases in which the trial court made additional findings, and that question was not presented in any of them. In the case of Dole v. Burleigh, 1 Dak. 227, 46 N. W. Rep. 692, on which counsel for appellant mainly relies, the trial court omitted to find upon a material issue presented by the pleadings, but it made no additional findings. The court laid down and applied the long-established principle, nowhere controverted, that the findings of fact by a court, like a special verdict, must decide every point in issue, and that the omission to find any material fact in issue is an error which in validates the judgment. A remark of the judge, in his opinion, favoring the view taken by appellant, is obiter, nd  contrary to adjudged cases, on like questions, in the highest courts of those states whose statutory provisions respecting the trial by the court of questions of fact correspond in almost every particular with sections 266, 267, Code Dak., supra. Those authorities hold that the omission to file findings of fact, judgment having been entered, is an irregularity which the court has authority to cure by supplying additional amendments until an appeal is taken, or a bill of exceptions is settled and signed by the judge. Williams v. Ely, 13 Wis. 1; Pratalongo v. Larco, 47 Cal. 378; Ogburn v. Conner, 46 Cal. 346; Bosquett v. Crane, 51 Cal. 505; Hayes v. Wetherbee, 60 Cal. 396; Swanstrom v. Marvin, 38 Minn. 359, 37 N. W. Rep. 455; Vermule v. Shaw, 4 Cal. 214.

A further ground relied on by the appellant is that there was no proper party defendant of record against whom the court had jurisdiction to proceed; and that the defendant below, acting in the capacity of sheriff, had no material interest in the subject-matter of the suit, and was not, therefore, the proper defendant thereto. We think there is no merit in this proposition. By the terms of the writs of attachment the sheriff was commanded to levy upon and attach personal property belonging to P. M. Lund & Co. Those writs did not authorize him to seize the property of any other person; and when he did seize other property he became a trespasser, and was not protected by the law. The rule in this respect was tersely stated by Mr. Justice MILLER, who delivered the opinion of the court in Buck v. Colbath, 3 Wall. 334, 343, 344. Speaking of the variety of writs, orders, or processes of the court, under which property may be seized by an officer, the learned justice divided them into two general classes: (1) 'Those in which the process or order of the court describes the property to be seized, and which contain a direct command to the officer to take possession of that particular property;' and, (2) 'those in which the officer is directed to levy the process upon property of one of the parties to the litigation, sufficient to satisfy the demand against him, without describing any specific property to be thus taken.' Referring to the second class he said: 'In the other class of writs to which we have referred, the officer has a very large and important field for the exercise of his judgment and discretion-First, in ascertaining that the property on which he proposes to levy, is the property of the person against whom the writ is directed; secondly, that it is property which, by law, is subject to be taken under the writ; and, thirdly, as to the quantity of such property necessary to be seized in the case in hand. In all these particulars he is bound to exercise his own judgment, and is legally responsible to any person for the consequences of any error or mistake in its exercise to his prejudice. He is so liable to plaintiff, to defendant, or to any third person whom his erroneous action in the premises may injure; and, what is more important to our present inquiry, the court can afford him no protection against the parties so injured, for the court is in no wise responsible for the manner in which he exercises that discretion which the law reposes in him, and in no one else.' See, also, Cooley, Torts, 396. In a case where the officer has exceeded his authority, he may be proceeded against either by an action for damages, if such remedy be sufficient, or by a writ of injunction to restrain the continued wrongdoing; and it is not essential that the plaintiffs in the writs be joined as parties defendant, where, as in this case, it does not appear, either from the pleadings or the proofs, that they advised or directed the sheriff to seize the particular property, as the property of their judgment debtor. In our opinion injunction was the proper remedy, the remedy at law being wholly inadequate to prevent or repair the injuries set forth in the pleadings, and stated in the findings of the court. e h ave not deemed it necessary to discuss the jurisdictional question raised by the appellee. It is clear that the appeal in this case was allowed by the proper court; that all the proceedings relative to the perfecting of an appeal were taken within two years from the date of entering the judgment of the court below; and that the enabling act admitting the two Dakotas, Montana, and Washington territories as states authorizes us to proceed to hear and determine cases of this character.

Judgment affirmed. 

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