90 P. 324 | Ariz. | 1907
— Appellant Martin Buggeln was plaintiff in an action seeking to restrain appellees herein from collecting toll upon the Bright Angel toll road. An injunction was issued, and in pursuance of an order of the court a bond upon the injunction was given by the appellant Buggeln, as principal, with the appellants T. A. Riordan and M. J. Riordan, as sureties. Upon the final hearing of the case the injunction was dissolved and the petition dismissed. Thereafter the appellees herein brought this action upon the injunction bond to recover damages claimed to have been sustained by them by reason of the injunction. The complaint contains no allegation that Buggeln has failed to abide the decision in the injunction suit, or that any sum of money was adjudged against him in that or any other proceeding. Appellants entered a general demurrer to the complaint, which was overruled. A trial of the action resulted in a judgment for the appellees for $2,000, whereupon the case was brought here upon appeal.
Appellants’ assignment of érror that the court erred in overruling their demurrer to the complaint presents the principal question in the case. The first contention of appellants is that such damages as result from the issuance of an injunction should, under the practice, principles, and procedure of equity, be assessed and awarded in the injunction suit, and that an independent action will not lie upon an injunction bond to recover such damages. This broad contention is not sustained by authority. In the ease of Bein v. Heath, 12 How. (U. S.) 168, 13 L. Ed. 939, it was held that, independent of the statute, the court cannot, when it dissolves an injunction, give judgment at the same time against the obligors in the injunction bond; that it merely orders a dissolution, leaving the obligee to proceed at law against the sureties in the bond, if he sustains damage from the delay occasioned by the injunction. The holding in this case was criticised and virtually disapproved in Russell v. Farley, 105
Paragraph 2751, quoted above, was adopted from Texas in 1887. It is claimed by appellees that the supreme court
In the revision of the statutes of Texas in 1879, article 3933, Paschal’s Digest, was made to read as does paragraph 2571 of our statutes, and, as so revised, was in force when the cases of Texas & New Orleans R. R. Co. v. White, supra, and Avery v. Stewart, supra, were decided. Therefore, we must examine those cases to determine whether the statute adopted by us was construed in accordance with the contention of appellees prior to the time we adopted it. Avery v. Stewart was a suit to enjoin the collection of a judgment. The defendant, upon the dissolution of the injunction, sought to have judgment against the sureties on the bond for the
It is insisted by appellees that, regardless of the construction given the statute by the supreme court of Texas, we should construe the statute in accordance with their contention, and cite the case of Meyers v. Block, 120 U. S. 206, 7 Sup. Ct. 525, 30 L. Ed. 642. That case went to the supreme court of the United States from the state of Louisiana. The bond sued upon was given upon an injunction issued in a ■bankruptcy suit in a United States bankruptcy court. The order for the injunction directed a bond conditioned “to save the parties harmless from the effects of the injunction in this cause.” The bond given was conditioned to “well and truly pay to . . . the defendant in said injunction all such damage as he may recover against us in case it should be decided that said writ of injunction was wrongfully issued.” The court construed the condition of the bond in the light of the order requiring it, and say that “the parties signing the bond must be presumed to have been cognizant of the order under which it was given, ’ ’ and in effect held the plain meaning of the condition to be to pay all damages which the defendant might sustain by reason of the injunction. It is readily apparent that the facts of that case, and the principles which controlled it, are widely different from the case at bar. Here the bond is conditioned in the language of the statute and of the order requiring it, and we may look to it alone to determine the contract into which the sureties entered.
Injunction bonds conditioned similarly to the one at bar have been before the courts of various states in numerous cases where recovery of damages was sought without an award previously made. We believe that practically all of them may be placed in two classes: (1) Where the statute or the order under which the bond is given requires a bond conditioned to pay damages sustained, the condition of the bond,
It is urged upon us that the construction of the statute which we are compelled to adopt will cause much inconvenience in requiring obligees in injunction bonds to litigate the question of damages in the injunction suits, and at times when the parties are not prepared -to present evidence concerning the extent of the damages sustained. If such inconvenience results, we must leave it to the legislature to remedy the situation; but we see no reason why the district courts may not, under their general equity powers to impose conditions upon which injunctions may issue, require applicants for injunctions to give bonds so conditioned, in addition to the conditions required by the statute, that actions at law to recover damages sustained by reason of the injunction may be maintained upon them. Russell v. Farley, 105 U. S. 433, 26 L. Ed. 1060.
The judgment is reversed, and the ease remanded to the district court for further proceedings in conformity with this opinion.
KENT, C. J., and DOAN and NAVE, JJ., concur.