Gray v. Bremer, 122 Iowa 110

Gray v. Bremer

122 Iowa 110 | Iowa | 1904

SherwiN, J.

The petition filed in the injunction action undoubtedly stated sufficient facts to warrant the issuance of the writ, for at that time no rent was due, and hence no attachment could issue for the enforcement of the landlord’s lien. Garner v. Cutting, 32 Iowa, 547.

And, if the facts stated.were -true, the writ was not wrongfully issued, and there can be no recovery on the bond. It is contended by the appellant that the order-dissolving'the writ was an adjudication that the writ was wrongfully issued, which is controlling in the present action. It is true that it is the general rule that, when an injunction is dissolved upon a hearing on the merits, an action on the bond will lie; but such is not the present case. Here the defendant Gray nowhere denied the allegation of the petition, except as to the rent due or to become due, and this he afterwards withdrew by his stipulation. 'Having failed to controvert the other material allegations of the petition, they are to be treated as admitted by him. Every claim, then, made by the plaintiffs in their petition was either admitted by Gray in his pleadings or in the stipulation, so that no issue was left to try except his claim for damages for the failure to provide *113water. When his stay bond was accepted and filed, it answered every purpose of the injunction by furnishing full protection to the judgment plaintiffs, and, the injunction being thus superseded, it was proper for the court to dissolve it upon Gray’s showing that he had stayed the judgment against him, and such order was not an adjudication that the writ was improvidently issued. Scott v. Frank, 121 Iowa, 218. Indeed, the record in the injunction case concludes the appellant in this. He made all pleadings, record entries, and proceedings therein a part of his petition, and they so conclusively showed that the writ was rightfully issued that there was nothing else to do but to sustain the.demurrer. The court had the right to rely upon the appellant’s admissions and stipulation in the former case as set forth in his present petition, rather than upon his allegation contradicting them, and we think the judgment should be and it is aeeiemed.