Brown v. Jones

5 Nev. 374 | Nev. | 1870

By the Court,

WHITMAN, J.:

This action is upon an injunction bond for one thousand dollars. It appears that the original injunction was modified in a very important particular, which, to that extent, was a decision that the writ was so far improperly granted, so respondents were entitled to their action, but their complaint presents several counts for damage which could not properly be considered under the terms of 'the bond, which is the ordinary statutory undertaking.

The District Judge was not sufficiently particular in instructing the jury, and allowed them to consider some items of alleged damage which should have been withheld. In deciding the motion made by appellants for a new trial he endeavors to correct the error by reducing the verdict of the jury, and confining it to the amounts claimed upon the counts by him considered good. This cannot be *377done; it is assuming tbe province of tbe jury. It might be tbe jury gave tbe whole verdict upon one erroneous count; for here no presumption can arise that tbe verdict was based upon tbe good counts, to tbe exclusion of the bad, as tbe amount found exceeds tbe aggregate claimedjijpon the counts held good by tbe Judge below by more than one-balf.

Tbe complaint is not, as claimed by appellants, entirely devoid of a cause of action; but it is so uncertain, that it should be amended to show with distinctness that tbe alleged damage resulted from that portion of the injunction dissolved, when, upon proper proof, respondents would be entitled to recover the actual expense and loss occasioned by the writ of injunction in this particular in which it was vacated. This would include tbe costs of the original proceeding, tbe reasonable counsel fee paid, agreed to be paid, or liquidated, for setting aside tbe injunction, and such other damage as the natural and proximate consequence of tbe issuance and enforcement of tbe writ, and no more.

It is difficult to define specifically, in tbe way of a rule, what • would not be included as matter of damage. Of course, generally, nothing which is not the actual, natural, and proximate result of the wrong; and with respect to the pleadings at bar, it may be said that no recovery could be had by reason of the cattle and wagon being thrown out of employment, nor for the expense of making, a road, nor for injury to the credit of respondents.

The judgment is reversed and the cause remanded.