Corder v. Martin

17 Mo. 41 | Mo. | 1852

Gamble, Judge,

delivered the opinion of the court.

Corder, the plaintiff in this case, sued one Lane, and recovered judgment. Lane obtained an injunction to restrain the collection of the money, and gave an injunction bond to the plaintiff, executed by the present defendants, Martin and Glas-cock. The condition of the bond, after reciting that the injunction was granted to restrain the collection of the judgment recovered against Lane, provided that, “ if Lane should abide the decision which should be made on the bill, and pay all sums of money, damages and costs, that should be adjudged against him if the injunction should be dissolved, then the bond to be void.” The injunction was dissolved, and the bill dismissed, and Lane was decreed to pay the costs in the chancery suit. The breaches of the bond stated in the petition are, that Lane did not pay the amount of the judgment at law, and that he has not paid to the plaintiff the costs in the chancery suit. The answer denied the liability of the defendants for either of the breaches, and was equivalent to a demurrer. The parties proceeded to a trial, and a verdict was rendered for defendants, the court refusing to decide that the defendants were liable.

1. It is clear that, within the terms of the condition of this bond, the amount of the judgment at law was not adjudged against Lane upon the dissolution of the injunction, and therefore, the securities were not bound for its payment. It is equally clear, that the defendant in the chancery suit, who is the plaintiff here, was not entitled to receive the costs of that suit, due to the officers of the court, unless he had previously paid them to the officers, and there is no allegation that he had paid them, therefore he was not entitled to recover from the defendants upon this breach-of the condition. The judgment is, with the concurrence of the other Judges, affirmed.