19 S.D. 492 | S.D. | 1905
In an action by the defendant Fenner to perpetually restrain plaintiff from leasing, transferring, or bringing an action to recover possession of the Palace Hotel and fixtures, which the latter owned in the city of Hot Springs, a temporary injunction was granted, and afterwards dissolved at the trial, where all the issues were determined in favor of the defendant McLennon, who thereupon instituted this action on the bond to recover damages sustained by the improvident injunction; but Fenner, who was not served with process, made no appearance, and this appeal is by the American Bonding & Trust Company from a judgment fixing its liability as surety at §825, and from an order overruling a motion for a new trial.
For a reversal of the judgment and order thus presented it is urged that the damages sustained by reason of the injunc tion must be assessed before an action on the bond is maintainable, and that the judgment in the former case of Fenner v. McLennon is res judicata. Apparently mindful of the fact that the principal may or may not be financially able to promptly respond in damages, and that his sureties on the bond must have their day in court, a considerate Legislature has left much to judicial discretion with! reference to such eon.-
From a careful study of the entire record, we are satisfied that no error occurred at the trial, and the judgment appealed from is affirmed.