139 P. 718 | Idaho | 1914
This action was brought on an injunction bond to recover damages alleged to have accrued by reason of the wrongful issuance of a writ of injunction. The action was tried by the court with a jury and verdict rendered and judgment entered for plaintiffs in the sum of $125. The appeal is from the judgment.
The following facts appear from the record:
On the 29th of October, 1910, the appellant Biethan brought an action to foreclose a crop mortgage, against J. D. Muir as mortgagor, joining also George A. Robethan, Willie B. Guthrie, Frank Andrews, Murl Burton, David France, William Hayes, Thomas Conroy and John T. Danilson, sheriff of Bingham county, as defendants. The defendant Robethan held a prior crop mortgage against Muir, in which foreclosure proceedings had been had. The other defendants, except the sheriff, were crop lien claimants against Muir. At the same time an injunction was issued enjoining the sheriff from paying over any money, goods or chattels then in his hands or that might come into his.hands by reason of the sale of any of the property of said Muir. In said action of Biethan v. Muir et al., said lien claimant defendants filed an answer and set up copies of farm laborers’ liens, and also averred in their .answer the confession of judgment by Muir and a decree of foreclosure, foreclosing said farm laborers’ liens, and alleged and claimed that said liens were superior to the lien of the mortgage which plaintiff Biethan was seeking to foreclose. This action was commenced October 29, 1910, and the answer thereto was filed November 12, 1910. On Novem
Neither at the time said answer was filed and the motion to dissolve was made, nor until the motion was argued did the plaintiff in his foreclosure suit have knowledge that there had been entered by confession said two judgments. Immediately after the discovery that said judgments had been entered by confession, the appellant Biethan brought another suit in the district court against Muir, the plaintiffs in this action and others, charging fraud and irregularity in the procuring of said judgments by confession, and on the same day obtained another injunction enjoining and restraining the same parties from doing the same acts that they were enjoined from doing in the former suit, the foreclosure suit, and then paid no further attention to the injunction in the foreclosure suit. The foreclosure suit was postponed and continued until the second suit was tried, which trial was had after answer by the defendants setting up practically the same defense as in the first action, and on the trial of that case before a jury, the jury found that the defendants, who are the respondents here, were guilty of fraud and conspiracy in having said two judgments entered by confession. The court adopted the special verdict of the jury, whereby he found the respondents guilty of fraud and made the injunction in said suit perpetual.
It will thus be seen that the injunction on which this action was based was issued in a suit wherein Biethan was attempting to prevent Muir and others from procuring the payment of said property and money on the fraudulent judgments which they had obtained by confession. Had Muir and his co-conspirators been entitled to a judgment for the amount due as claimed by said laborers’ liens and the foreclosure of the same, a judgment for the amount due on the liens and the foreclosure of the liens should have been had in the same proceeding; but it appears that a money judgment was rendered first and then a decree of foreclosure was thereafter entered for the purpose of enforcing the collection of said money judgment.
As to the said judgment and decree, the court found, among other things, as follows: ‘ ‘ That the said liens so filed by the defendants, Willie E. Guthrie, Frank Andrews and William Hayes, were and are illegal, fraudulent and void, and that the judgment so confessed thereon by the said Muir, was obtained by the fraud and conspiracy of the defendants, J. D. Muir, Willie E. Guthrie, Frank Andrews and William Hayes, and that the said judgment and decree of foreclosure so obtained is fraudulent and void.”
Judgment was entered accordingly, setting aside the decree foreclosing said liens.
While counsel for appellant assigns seventeen specific errors, they are grouped and discussed under two heads in the brief of appellant. The first is that the court erred in refusing to sustain the demurrer to the complaint, and the second, that the evidence is insufficient to support the verdict.
In Summer v. Crawford (Tex. Civ. App.), 41 S. W. 825, the court held that where goods are illegally seized under execution, the plaintiff cannot recover damages by reason of an injunction to prevent a sale, sued out by the person entitled to the goods, even if the injunction were not warranted by law.
It is clear that there must be an unjust restriction of a right to make one liable in damages for suing out a writ of injunction, and one who has obtained a judgment by fraud on a debt that has been paid cannot recover damages on the injunction bond even though the injunction be dismissed and the writ quashed.
Since we hold that the respondent cannot recover damages it will not be necessary for us to pass upon the other assignments of error. The judgment is therefore reversed and the cause remanded to the trial court with instructions to dismiss the action, with costs in favor of appellant.