Bush v. Kirkbride

131 Ala. 405 | Ala. | 1901

McCLELLAN,'-O. J.

The condition to liability -on -an injunction bond is the dissolution of the injunction. The liability on the bond when the injunction has been dissolved is for all damages and costs sustained by any person in consequence of the suing out of the writ. This liability is by no means limited in respect of costs and -charges incurred by the persons enjoined to'such as are incident to efforts to have the injunction dissolved. Those are not the only costs and -charges which approximately result from the issuance of the writ and grow out of efforts on the part of the respondents affected by it to be relieved from its operation. The fees of counsel for investigation of respondents’ status -and rights with reference to the injunction, and for his ad-rice thereon, and for -services rendered in any proceeding or effort the purpose of which, and the effect of which if successful, is to lift the restraint of the writ, whether this be sought- to be done through a motion to dissolve, the injunction, or a motion to discharge it, or through a motion to dismiss the bill for want of equity or -a dismissal of it -on plealings and proof at the hearing where, as in the case at bar, injunctive relief is the sole purpose and prayer -of the bill, constitute damages sustained by the suing out of the injunction, and are recoverable as such by suit- on the bond when the injunction lias in point of fact- been in any way or for any cause -dissolved; and this upon the very letter of the statute and the bond given in conformity to it. — Code, § 788; Jackson et al. v. Millspaugh et al., 100 Ala. 285. Nor is it conceived that the fact that the purpose sought to be effectuated by the injunction maybe accomplished and is accomplished before the dissolution, and before the efforts of the respondents to be relieved from its restraint are successful, as where the respondents are enjoined not to do an act which they cannot do after a certain time, and the writ, issued in accordance with the prayer of the bill, restrains them from the doing of that act within the time in which only it is possible for them to do it at all, so that the mandate of the writ has expired by its own terms before dissolution, can have any material bearing toward the exoneration of the bond. In the case at bar the respondents as public officers were enjoined from doing a certain official act for a specified time. The expiration of that time was coincident with the expiration of their terms of office as appears by the bill. Subsequently, the writ having in fact performed the functions of a perpetual injunction, and this without a hearing, the complainant dismissed his bill, and thereby dissolved the injunction. And it is contended that the injunction having fully performed its office, according to the prayer of the bill and its own terms, it no longer existed for any purpose and could not be and was not and can never be dissolved. The position is without merit. • In this country the prevailing doctrine is that notwithstanding the time within which the writ is operative has lapsed, the injunction continues to, legally exist until it is dissolved by the court. The injunction in this ease did not simply pass out of existence upon the expiration of the time of its operation, but it was dissolved by the subsequent dismissal of his bill by the coiñplainant. We have then in this case every constituent of liability on the bond sued on: The suing out of the writ, evidence of damages sustained by plaintiffs by the suing out of it, and its dissolution; and, therefore, the court properly gave the affirmative charge for the plaintiffs, and also charge 2 requested by them .

Affirmed.