96 Mo. 533 | Mo. | 1888
In this cause, the injunction was in aid of the principal suit, the latter was heard on its merits, the petition dismissed and the injunction dissolved on the nineteenth day of December, 1881. On the twenty-third of April, 1883, a motion was filed for the assessment of damages, but no notice of the motion was served on the opposite party, and on November 12 next following, the motion to assess damages was denied.
The point has, it seems, never been ruled by this court, whether an assessment of damages must occur at the same term at which the dissolution of the injunction occurs ; but this has been the ruling made by the St. Louis court of appeals in Loehner v. Hill, 19.Mo. App. 141; and it is believed that this ruling is in accord with the prevalent practice in such cases. But however that may be, whether it be admissible to proceed to have an inquiry of damages after the lapse of the term at which the dissolution of the injunction occurs, or not, it would certainly seem requisite after such term had gone by, to notify the opposite party of the proposed inquiry of damages before proceeding to have the same assessed. This was the view taken by the lower court and we affirm the judgment.
In my opinion, the court should have ordered notice to be given of the motion, and not have dismissed the cause.
