89 Ky. 1 | Ky. Ct. App. | 1889
delivered the opinion of the court.
The appellee’s intestate obtained a judgment against Joseph. Queen for the recovery of the possession of a house and lot. The said Queen instituted an action against the intestate and sheriff, who had the writ of possession in his hands for execution, to enjoin them from proceeding to enforce the judgment. A temporary injunction, upon the execution of a bond with the appellant’s intestate as surety, was granted, enjoining the appellee’s intestate from proceeding to execute the writ of possession until the further orders of the court. The bond contained a covenant to pay the appellee’s intestate such damages as she might sustain, if it should be finally decided that the in
The appellant’s contention is, that under section 295 of the Civil Code this action can not be maintained on the injunction bond. Said section is as follows:
“ Upon the dissolution, in whole or in part, of an injunction to stay proceedings upon a judgment, the damages shall be assessed by the court, which may hear the evidence and decide in a summary way, or may, at its discretion, cause a jury to be impaneled to find the damages. If the. collection, payment, or use of money be enjoined, the damages may be any rate per cent, on the sum released by the dissolution which, in the discretion of the court, may be proper, not exceeding ten per cent.; and, if the delivery of property have been delayed by the injunction, the value of the use, hire or rent thereof shall be assessed ; judgment shall be rendered against the party who obtained the injunction for the damages assessed ; and the assessment shall be conclusive against the surety of such party.”
Section 325 of the old Code was the same as the section of the present Code above quoted. This court, in the case of Crawford v. Woodworth, &c.. 9 Bush,
But it is said that, as the injunction bond is broad enough to cover damages for waste, and as the remedy given by section 295 is confined to the value of the use, hire or rent of the property, the injured party will be without remedy for waste committed by the party enjoining, unless he can maintain an action on the bond to recover for such damages.
This contention is plausible; but it will be seen by a moment’s reflection that splitting causes of action so as to have one pending on motion before the court, and the judgment thereon conclusive on all the parties, including the surety, and the other pending by action
The judgment is reversed, with directions to grant the appellant a new trial, and to sustain the démurrer to the petition, except as to the .costs, and for further proceedings consistent with this opinion.