Akin v. Rice

137 Mo. App. 147 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts).— There are two questions presented by the appeal and briefed by counsel. It is claimed by the appellant, first, that no temporary injunction ever having been issued in the case, the obligation of the bond has not been forfeited and, in the second place, that the amount awarded is too large and is grossly excessive. Taking up the latter proposition first, the ground of this contention is that the court, in awarding these damages, and the attorneys who testified as to the value of the services, had improperly taken into consideration, in estimating the damages, the services of the attorneys for the Merchants’ Exchange in connection, not only with the dissolution of the injunction or temporary restraining order, as it is insisted upon the order is, but also with their services in the defense of the case on its merits, or, more correctly, an examination of the case on its merits. We cannot agree to this view. We are satisfied from the evidence in the case that the court and witnesses made proper discrimination, as far as it was possible to do so. In point of fact, it is very difficult, in view of the averments in the petition, to understand how one could be separated from the other. Any conscientious lawyer, competent to attend to such a case, would necessarily have to go into all the allegations of the petition in order to advise himself and his client on the proper steps to be taken to vacate the restraining order issued, the continuance of which in force was the very gist of the controversy. So true was that in this case that when the court determined that it .would hot continue the restraining order in force pending final hearing of the case, and when the continuance of the restraining order until final hearing was denied, the plaintiff, recognizing the futility of a further prosecution of the case, voluntarily dismissed it. The dissolution of this temporary restraining order was practically the end of the case; the question of whether it should be dissolved undoubtedly and necessarily turned upon the consideration of the allegations in the petition. Damages are only allowed on dissolution of an injunction, for services rendered in securing the dissolution. We cannot conceive of any way by which even the most astute legal mind could, in this case, accurately divide one from the other; but because they could not do so to a hair is no reason why services rendered in securing the dissolution should not be paid for, and their value assessed, on the bond. It was the duty of the court and witnesses to make the best estimate possible of the value of the services in connection with the dissolution of the injunction. The court evidently did that. So did the attorneys who testified. While the latter varied, in their estimate from $1,000 to $2,000, no one went below $1,000, all saying that they would consider $1,000 as a very low fee. The court allowed.$750. We see no reason to hold that this award was excessive.

The second proposition turns entirely upon an effort to draw a distinction between a temporary restraining order and a temporary injunction. This is a contention over names more than over substance. The temporary restraining order was issued upon the distinct condition that the plaintiff file with the clerk of the court a bond in the sum of $2,000, as required by law. This order was entered on the fifth of May. The bond in question was filed on that day and was approved on the same day by the judge of the court. Under our statute, the court had no power whatever to issue any kind of a restraining order in the nature of an injunction without the exaction and the execution of a bond. Section 3637, Revised Statutes 1899, specifically provides: “No injunction, unless on final hearing or judgment, shall issue in any case, except in suits instituted by the State in its own behalf, until the plaintiff, or some responsible person for him, shall have executed a bond with sufficient surety or sureties to the other party, in such sum as the court or judge shall deem sufficient to secure the amount or other matter to be enjoined, and all damages that may be occasioned by such injunction to the parties enjoined, . . . conditioned that the plaintiff will abide the decision which shall be made thereon, and pay all sums of money, damages and costs that shall be adjudged against him if the injunction shall be dissolved.” The authority of the courts of this State to issue injunctions is coupled with the obligation to exact a bond. The statute is not to be evaded or frittered away by calling that which is an injunction by any other name. The restraining, order in this case was of force against all of the defendants until it was dissolved and a further injunction refused on. hearing of the motion to make it of force until final hearing. Who can doubt that a disregard of it would have subjected those against whom it was leveled and who were bound by it, to punishment for contempt, exactly as absolutely as if it had been termed a temporary injunction? It would have been treated exactly as any other injunction. We decline to follow the refinements of the very able, industrious and learned counsel for the appellant in their attempt to draw a distinction between such a temporary restraining order and an injunction.

The point is made that this is an action on a bond and that in actions of that kind a strict construction is to be indulged in, in favor of tbe obligors. That is true, but it does not apply to this case. That rule is always enforced for tbe protection of sureties. In tbe case at bar tbe action was dismissed as to tbe surety and tbe award is against tbe principle in tbe bond. We know of no case and bave been referred to none, that extends tbis doctrine or presumption to tbe principle.

A consideration of tbe whole case leads us to tbe conclusion that whether called a temporary injunction or a restraining order, tbe bond covered it; and that tbe amount assessed is reasonable and the judgment of tbe court correct. Its action is affirmed.

All concur.