12 Cal. 107 | Cal. | 1859
after stating the facts, delivered the opinion of the Court —Terry, C. J., and Baldwin, J., concurring.
The appellants makes the following points : First. That the restraining order was void, because made before the complaint in the suit of the creditors was filed; Second. That the Court has never decided that the plaintiffs in that suit were not entitled to the restraining order; and, Third. If the defendants are liable upon the undertaking, the rule of damages must be the legal interest of ten per cent, a year upon the money in Court.
The first point is untenable. The order could only take effect upon the filing of the complaint, and the bond or undertaking required, and it was unnecessary to delay the application to the Judge until after the complaint had been filed.- When a restraining order or an injunction is sought upon the complaint itself, it is the usual practice to present the complaint, in advance of the filing, to the Judge, and obtain the order or the allowance of the writ; and with this practice the statute
The second point is also untenable. The Court, in adjudging that the judgment of the plaintiffs against Arronson was valid, and not fraudulent or collusive, and that they were entitled to the money in Court in substance, if not in terms, decided that the other creditors were not entitled to the restraining order.
But the third point is well taken. The only damages which the law allows for the detention of money under its process is the legal interest. The rule of damages, in such cases, like the one which obtains in actions upon promissory notes, is a fixed and arbitrary one. The actual loss occasioned may be much greater than the interest, but the consequences beyond that the law does not inquire into (Sedgwick on Damages, chap. 8). It would indeed often be impossible to determine the actual damages resulting from the detention of money; the party entitled to it may in consequence have been compelled to borrow on ruinous rates of interest; he may have become embarrassed in his business operations, ruined in credit, and perhaps driven into insolvency; but of these possible consequences the Courts cannot take notice. The legal interest in such cases is the only measure which can be followed with certainty, and, as a general rule, with safety. The judgment, therefore, must be modified. The allowance of the three hundred dollars was proper (Summers v. Parish, 10 Cal. 353). This sum added to the interest on the money deposited in Court at the rate of ten per cent, a year from December 15, 1856, to April 29,1857, must constitute the amount to which the judgment is to be reduced.
The cause is remanded to the Court below, with directions to modify the judgment in accordance with this opinion; the costs of the appeal to be allowed to the respondents.