Plаintiff brought this suit for damages alleged to have been suffered through the wrongful issuance in the state court of a writ of injunсtion prohibiting it from distributing natural instead of artificial gas through its mains under its franchise. Plaintiff alleged that the writ was first issued on Marсh 1, 1923, and on trial was perpetuated, but that it was subsequently dissolved by final decree of the Court of Civil Appeals of the state on January 6, 1927. Damages were claimed in the sum of $475,000.' The lower court dismissed the petition, holding that it disclosed no cause of action. His ruling was that, no bond having been fixed by the state trial court to be given by the city, there was no basis for determining its liability.
The charter of the city in section 6 provides as follows: “City not Required to Gwe Bond. — It shall not be necessary in any action, suit or proceeding in which the City of Corpus Christi is a party for any bond,
Article 768 of the Revised Statutes of Texas (1911) also declares: “City Exempt f rom Giving Bond in Suits. — It shall not he necessary in any action, suit or prоceeding in which the city, accepting the provisions of this title, shall he a party, for any bond, undertaking or seсurity to be executed in behalf of the city; but all such actions, suits and proceedings shall be conducted in the same manner as if such bond, undertaking or security had been given, and, for all the purposes of such actions, suits and proceedings, the city shall be liable in the same manner, and to the same extent, as if the bond, undertaking or seсurity in ordinary cases had been duly given and executed.”
In litigation between private persons, the giving of bond is a сondition precedent to the issuance of a writ of injunction, which must be made payable to the defendаnt and be conditioned that the plaintiff “will pay all sums of money and costs that may be adjudged against him if the injunction be dissolved in whole or in part.” Revised Statutes of Texas (1925), art. 4649. This last-mentioned section has been construed by the сourts of Texas to render the principal in an injunction bond liable for such damages as the defendant may suffеr, even though they exceed the amount of the bond. Miller Surfacing Company v. Bridgers (Tex. Civ. App.)
The provision of the charter above exempts the city from giving bond, but declares that it “shall be just as liable as if security or bond had bеen duly executed”; and the section of the Revised Statutes declares that a municipality “shall be liable in thе same manner, and to the same extent, as if the bond, undertaking or security in ordinary cases had been duly given and еxecuted.” We think Ihis means that the city is simply relieved from giving bond, but that it remains liable for damages to the same extent as ordinary suitors; and, since the latter are responsible, under the authorities cited, to the extent of the injury suffered, notwithstanding the limitations of the bond in so far as sureties are concerned, it follows that a city is also.
The authorities cited by the lower court in support of its decision to the contrary either arose under the old сommon-law doctrine requiring malice or want of probable canse>to entitle a defendant to recover for the suing out of a writ of injunction, or were controlled by, the peculiar provisions of the statutes сonstrued. The leading case cited and relied upon was that of the City of Yonkers v. Federal Sugar Refining Co.,
For the reasons assigned, the judgment appealed from is reversed.