CAMPBELL v. PHILLIPS PETROLEUM CO.

CAMPBELL v. PHILLIPS PETROLEUM CO.
1935 OK 735
49 P.2d 705
173 Okla. 424
Case Number: 24314
Decided: 09/10/1935
Supreme Court of Oklahoma

CAMPBELL et ux.
v.
PHILLIPS PETROLEUM CO. et al.

Syllabus

¶0 Execution--Order Restraining Execution Sale of Personalty Properly Dissolved Where Not Served Before Sale.
The purpose of a restraining order is to maintain the subject of controversy in statu quo until such time as may be designated therein or until a hearing may be had and the right of an injunction determined, and where a party seeks to restrain the sale of personal property under execution and the restraining order is not served on the parties in interest until after the personal property is sold, this court will not disturb the judgment of the trial court in setting aside the restraining order and refusing to grant a temporary injunction.

Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.

Action by T. H. Campbell et ux. against the Phillips Petroleum Co. et al. From an order dissolving restraining order and denying temporary injunction, plaintiffs appeal. Affirmed.

F. E. Riddle, for plaintiffs in error.
W. S. Meyer, for defendant in error Phillips Petroleum Company.

PHELPS, J.

¶1 Phillips Petroleum Company obtained a judgment in the justice of the peace court against T. H. Campbell and Mrs. T. H. Campbell, plaintiffs in error here, for the sum of $ 34.15.

¶2 No appeal having been taken, execution was issued and levied upon an automobile belonging to Mr. and Mrs. Campbell against which Lewis Investment Company held a recorded chattel mortgage. Phillips Petroleum Company paid to Lewis Investment Company the balance due on the chattel mortgage and caused notice of sale to be given, said sale to be held at 10:00 o'clock in the forenoon of November 7, 1932.

¶3 On November 5th preceding the sale date, Mr. and Mrs. Campbell filed their action in the district court of Tulsa county, alleging fraud and collusion on the part of Phillips Petroleum Company and Lewis Investment Company and prayed for damages and an injunction against the sale of said automobile, and at the same time obtained a restraining order returnable on November 9th. It appears the restraining order was not served until after the sale was had. Indeed the record fails to show that the restraining order was ever served, and the record shows that the summons issued in the case was not delivered to the sheriff for service until November 10th.

¶4 The sale was had, according to the notice, at 10:00 o'clock on November 7th. On November 9th, when the case was called for hearing, for temporary injunction, the restraining order was dissolved and set aside and the temporary injunction denied, from which order of the court this appeal is prosecuted.

¶5 In Maxwell v. City of Tulsa, 145 Okla. 155, 292 P. 66. this court had under consideration a similar question and in disposing of same, used the following language:

"This court has, in a number of cases, announced the rule that the court will not entertain an action to enjoin a party from doing that which he has already done. Goldsmith v. City of Ardmore, 136 Okla. 201, 277 P. 230; Youngblood v. Town of Wewoka, 95 Okla. 28, 225 P. 695; Teter v. Board of Ed. City of Drumright, 85 Okla. 16, 204 P. 129."

¶6 Upon the authority of these cases, the judgment of the district court is affirmed.