224 N.W. 700 | Minn. | 1929
July 13, 1923, plaintiff sold and agreed to convey to Frank and Marie Tergeon, husband and wife, a residence property. The vendees defaulted and the contract was canceled by statutory notice April 14, 1924. April 25 plaintiff commenced in the municipal court of Minneapolis an action of unlawful detainer against the Tergeons to secure the restitution of the premises. May 2, 1924, Marie Tergeon, one of the vendees, sued plaintiff in the district court of Hennepin county for an injunction restraining the prosecution of the action of unlawful detainer, procuring first a temporary restraining order, and then a temporary injunction. It is upon her injunction bond of $1,000, with defendant as her surety, that the present suit is brought.
The complaint alleges that the injunction suit was tried in March, 1925; that in April there was an order dismissing it; that on May 12 the motion of the plaintiff therein, Marie Tergeon, for a new trial was denied; that she thereupon appealed to this court; that her appeal was dismissed (Tergeon v. Johnson,
But in the original answer defendant had set up affirmatively, in detail and unnecessarily, an order whereby on motion the temporary injunction was "vacated and dissolved" as of September 18, 1924. October 9, 1924, an order was made denying a motion to reinstate the injunction. But on the same date another was made, which among other things provided "that until the disposition of this case, *105 further proceedings between the parties in the municipal court" in the forcible entry and unlawful detainer action "be stayed" and that the bond "in the injunction proceedings remain operative and in full force and effect to abide the event of this action." Thereafter on motion there were stricken from the amended answer, as sham and frivolous, the allegations of the orders of the district court just referred to. From that order no appeal was taken. Plaintiff did not press his action of unlawful detainer and so did not recover possession from the Tergeons until after the final decision of the injunction suit. The decision below allows him damages for loss of possession upon the theory that the temporary injunction remained in force during all of that period.
1. It is argued for plaintiff that if it was error to strike the portions of the answer which were stricken, it was not an error occurring at the trial and therefore cannot now be reviewed upon an appeal from an order denying the motion for a new trial but can be corrected only on an appeal from the judgment. City of Winona v. Minn. Ry. Const. Co.
Neither proposition is controlling. It was part of plaintiff's case, and not matter of defense, to show the period during which the injunction bond was in force. The allegation of the complaint that the injunction remained in effect during the entire course of Tergeon v. Johnson, through the district court and this court, was put in issue by the general denial of the amended answer. So, in spite of the absence from the answers of the matter that had been stricken, *106 defendant was entitled to show that the injunction and bond had not been in force as averred by plaintiff.
2. The bond recited the application for the "restraining order and writ of injunction" and was conditioned for the payment of such damages as the defendant (this plaintiff) might sustain "by reason of said restraining order and writ, if the court finally decide that the said plaintiff [in the injunction case] is not entitled thereto." The language did not, as plaintiff contends, continue the liability of the surety to the final decision irrespective of the status of the preliminary injunction in the meantime. True, any effort to recover damages prior to the final decision of an injunction case is premature. Winston v. Ladner,
The surety on an injunction bond is liable only for what he contracts to assume. The obligation of this defendant must be determined accordingly. It is a paid surety, and therefore if there were ambiguity in the bond it might be determined against defendant by construction. Standard S. C. Co. v. National Surety Co.
The injunction against plaintiff was dissolved September 18, 1924. It was not reinstated by the order attempting to stay proceedings *107
in the municipal court. That was a new and different order, the damages from which, if any, defendant had not undertaken to pay. Furthermore, it was of questionable effect because instead of operating upon the parties thereto and restraining them from proceeding with the action in municipal court, it attempted directly to stay proceedings in that court. Mann v. Flower,
For these reasons our conclusion is that there was no liability against defendant as surety on the injunction bond beyond the dissolution of the injunction and that plaintiff's recovery must be limited accordingly.
Order reversed. *108