Bank of Monroe v. Gifford

70 Iowa 580 | Iowa | 1887

Reed, J.

A number of questions arise on the record, and have been argued by counsel. But, in our opinion, the case can be properly disposed of on a consideration of but one of them. Under the issue, plaintiffs were required to establish (1) that the injunction was wrongfully sued out; and (2) that they were damaged by the issuance of the writ. One question argued by counsel is whether the order of the judge vacating the writ has the force and effect of a judgment, or "whether the defendant may go back, and show, notwithstanding the order, that there was just ground for the issuance of the writ. Without now determining that question, we will concede, for the purposes of the case, that the order is a judicial determination that the writ was wrongfully sued out, and as to that question the parties are concluded by it. But we are of the opinion that, conceding that the writ was wrongfully sued out, plaintiffs have not established the other fact which they were required to prove. The condition of the bond sued on is that defendants will pay all damages which plaintiffs may sustain by reason of the issuance of the writ. Plaintiffs could be damaged by the injunction only in case they were prevented by it from exercising or enjoying some right or privilege which they desired and were entitled to enjoy. If they were left by it in the same position, with reference to the subject of the controversy, which they intended to occupy if the writ had not been issued, they clearly were not damaged by it, however wrongful it may have been; and it appears to us that by their own showing they were left in precisely that position. The gravamen of defendant’s petition in the equity action was fraud in the obtaining of his signature to the note. The relief which he demanded in the case was' the cancellation of the note. He was not entitled to an injunction on account of such fraud, however gross he may have shown it to have been; but before he would be entitled to the order allowing the writ, he must show by the allegations of his petition that plaintiffs were about to do some act in violation of his rights with reference to the subject of the action, which would tend to render ineffectual the judgment he was seeking to obtain. Code, § 3388.

Now, while it does not appear from the. record before us that the petition in the equity action alleged that plaintiffs were about to negotiate the note, yet, as the restraining of that act was all plaintiff sought to accomplish by the writ, and as such averment was essential to his right to the order, and the judge made the order on the showing contained in the petition, and no question was made in the motion to dissolve the writ as to the sufficiency of the petition in that respect, we will presume that it did contain that allegation. As stated above, plaintiffs filed an answer denying all the allegations of the petition. They also filed affidavits in support of their motion to dissolve, but these tended only to disprove some of the allegations of fraud contained in the petition. But, as fraud was the gra/oamen of the complaint, the injunction would have been continued until the final hearing, unless it was made to appear that it was not necessary for the preservation of the rights which would accrue to defendant under the final judgment in case he should be successful. Brigham v. White, 44 Iowa, 677; Fargo v. Ames, 45 Id., 491. But defendants, by their denial of the allegation that they were about to negotiate the note, showed to the judge that the continuance of the injunction was not essential to the preservation of any right which might accrue to defendant under the final judgment. By that denial they placed themselves in the position of insisting that they were not about to negotiate the note, and had no intention of doing that act; but, if that was true, how could they be damaged by the writ? It simply restrained them from doing an act which they say they did not desire to do, and had no intention of doing. The principal ground of their motion to dissolve was that, all the allegations entitling plaintiff to relief being denied, the injunction ought not to be continued. It is true there were other grounds of the motion; but, as plaintiffs insisted upon that ground'as a eause for the dissolution of the writ, it cannot be material to consider them. The order sustaining the motion was general, and did not designate any particular ground thereof as the one upon which it was based. The presumption is, then, that it was sustained upon all the grounds urged.

By their own showing, then, plaintiffs were not damaged by the writ. They were not prevented by it from exercising or enjoying any right which they intended or desired to enjoy. The continuance of the writ would not have been injurious to them, and by its dissolution they gained no benefit or advantage. Under that state of facts, they are not entitled to recover the expense incurred by them in procuring its dissolution.

REVERSED.