Dowling v. Polack

18 Cal. 625 | Cal. | 1861

Cope, J. delivered the opinion of the Court

Field, C. J. and Baldwin, J. concurring.

This is an action upon an injunction bond, and the dismissal of the suit in which the injunction was issued amounted to a determination by the Court that the injunction had been improperly granted. The suit was dismissed for want of prosecution, and with respect to the particular case, the judgment of dismissal had the same effect upon the rights of the parties as would have resulted from a judgment upon the merits. It terminated the proceedings, and by its legal operation and effect set aside and discharged the injunction ; it was the final action of the Court operating directly upon the injunction, and destroying the foundation upon which it rested. We are aware of the decision of this Court in the case of Gelston v. Whitesides, (3 Cal. 309) but we think the rule laid down in that case cannot be maintained. It was held by the Supreme Court of New York, in Loomis v. Brown, (16 Barb. 325) that a dismissal of the complaint included, by force of the term itself, and of the law applicable to it, a determination that the party was not equitably entitled to the injunction. The same Court, in Sherman v. New York Central Mills, (11 How. Pr. 269) said: “ the Court must decide that the plaintiff was not entitled to the order. This must be a final decision; that is, made at the termination of the cause by a decree or judgment therein, or by the voluntary discontinuance of the suit,” ' In the former of these cases nothing more was alleged than that an order had been made dismissing the complaint ; and in the latter, that the injunction had been dissolved, pending the proceedings in the case. The judgment of dismissal was held to be sufficient to entitle the plaintiff to sue upon the bond; but the dissolution of the injunction was regarded as a mere interlocutory matter, not affecting the ultimate rights of the parties. These were to depend upon the final action of the Court, and it was immaterial whether this action should be in the shape of a judgment upon the merits, or a voluntary dismissal or discontinuance of the suit. In Coates v. Coates, (1 Duer, 644) the injunction had been dissolved and the suit voluntarily discontinued, and it was not even pretended that the judgment of discontinuance did not estalish a right of action upon the bond. In Methodist Churches, etc. v. Barker, (4 Smith, 463) the complaint had been dismissed, and a reference ordered to ascertain the damages resulting from the injunction, and it was held that the judgment of dismissal determined the rights of the parties, and the reference was sustained.

Looking at the matter in the light of principle, it would seem that the failure of a plaintiff to prosecute his suit should be regarded as a concession of his inability to maintain it, The issues are not actually examined and passed upon, but by his failure to appear he virtually confesses that the result of a trial would be to find them against him. A dismissal under such circumstances must be understood as proceeding upon this idea, and so far as relates to the case itself, as determining everything involved in it. In effect, a dismissal is a final judgment in favor of the defendant; and although it may not preclude the plaintiff from bringing a new suit, there is no doubt that for all purposes connected with the proceedings in the particular action, the rights of the parties are affected by it in the same manner as if there had been an adjudication upon the merits.

We dissent in toto from the suggestion in Gelston v. Whitesides, that the grounds of the injunction may be inquired into in a suit upon the bond. It is for the Court to determine whether the injunction was properly or improperly issued, and no action can be maintained upon the bond until such determination has taken place. The undertaking of the parties in such cases is, that they will pay, etc., if the Court shall finally decide that the plaintiff was not entitled to the injunction; and the statute evidently contemplates a decision in the injunction suit. It is clear that until a decision to that effect has been obtained, no right of action exists upon the bond.

These views are decisive of the case as it is presented to us in the briefs of counsel; and it follows that the judgment of the Court below must be reversed, and the cause remanded for further proceedings.

Ordered accordingly.