104 Iowa 373 | Iowa | 1898
After the affirmance of a decree permanently enjoining the defendant Edwards from practicing his profession in- Woodbine and vicinity, (Cole v. Edwards, 93 Iowa, 477), the plaintiff began- this action on the supersedeas bond filed in that case, conditioned for the payment of “all costs and damages that shall be adjudged against said appellant on this appeal,” and alleged, among other things, that during the pendency of the appeal Edwards continued in the practice of medicine in the same locality, and that by reason thereof the plaintiff sustained damages in the sum of one thousand, five hundred dollars. All the averments of the petition with reference to this item of damages were stricken therefrom, on motion
This order may be upheld on either of the two grounds.: (1) The damages were not covered by this bond, and (2) were not occasioned by the appeal. Liability cannot be extended beyond the terms of such an instrument. Jayne v. Drorbaugh, 63 Iowa, 711. See Noyes v. Granger, 51 Iowa, 227; 1 Enc Pl. & Prac. 1015, and notes. Damages adjudged on appeal, and not such as result from a violation of the writ of injunction, are those contemplated by the bond. An appeal or stay does not vacate or affect the judgment appealed ’ from. Code 1873, section 3186. The decree perpetually enjoining Edwards from engaging in the practice of medicine at Woodbine and vicinity was not vacated or suspended by the appeal, or the filing of the bond. Lindsay v. District Court, 75 Iowa, 509. See Allen v. Church, 101 Iowa, 116, 2 Enc. Pl. & Prac. 326. If he did as alleged, he was guilty of contempt of court, and all the provisions of law for enforcing obedience might have been resorted to by the plaintiff as freely after as before the filing of the bond. The damages, if any, were occasioned, not by reason of, but in- spite of, the procedure and orders of the court. — Affirmed.
