Moorer v. Andrews

39 S.C. 427 | S.C. | 1893

The opinion of the court was delivered by

Mr. Justice Pope.

This action was heard by his honor, Judge Kershaw, upon exceptions to the report of the master, and now comes on to be heard in this court upon an appeal from the decree of the Circuit Judge.

It seems that the plaintiffs brought an action in the Court of Common Pleas for Orangeburg County to restrain the defendant Andrews from cutting down and disposing of by sale the timber growing upon a certain tract of laud of which Mrs. Ann C. Andrews was in possession at the time of her death, and which subsequently was in the possession of said defendant Andrews; to restrain said defendant from renting out and receiving the rent from said lands; and, finally, for a partition of said lands. On the application of the plaintiffs, Judge Fraser, at chambers, on 29th November, 1884, granted'an order of injunction against Andrews, but required the plaintiffs to execute a bond with sureties, to be approved by the clerk, of such court, in the penalty of $500, conditioned to pay to said Andrews such damages, not exceeding $500, as he may sustain by reason of such injunction, if the court should finally determine that the plaintiffs were not entitled to such injunction. The plaintiffs executed the bond, with H. M. Moorer and John L. Moorer as sureties. This order of injunction was served upon the defendant Andrews on the 3d December, 1884. But he, on the 15th day of December, 1884, moved, upon due notice, before his honor, Judge Pressley, to vacate such order of injunction, and, after a full hearing thereof, Judge Pressley did vacate and set aside such injunction. And at the hearing of the action on its merits in the Circuit Court, the defendant prevailed, from which judgment no appeal was taken.

Now the defendant Andrews takes the initiative against the plaintiffs and their two sureties, H. M. Moorer and John L. Moorer, to require them to pay the $500 stipulated in their bond to obtain the original order of injunction, alleging that his damages were $666.70. The practice, in such cases as the present, has been fixed by this court. Livingston v. Exum, 19 S. C., 223; Hill v. Thomas, Ibid, 231, and the present case follows the precedents there laid down. The master for Orange-burg took the testimony and heard the parties. By his report he found that the defendant Andrews was damaged by the order of injunction obtained by the plaintiffs beyond $500, but recommended judgment for that sum. Upon exceptions to this report, Judge Kershaw held and decreed that Andrews was only entitled to a judgment for $134.20, thus overruling the master’s report for the most part.

And now J. Hesse Andrews appeals to this court, on the following grounds: “1. Because his honor erred in overruling the master’s report and sustaining the plaintiffs’ exceptions to the item of $475 damages allowed to 'this defendant as the profits lost on five hundred cords of wood, which defendant was prevented by said injunction from selling and delivering as per his contract, and in disallowing to him said profits. 2. Because the master having found as a matter of fact that the defendant, J. Hesse Andrews, by reason of the injunction in this case, failed to deliver to George H. Cornelson, under his contract, not less than five hundred cords of wood, upon which the said J. Hesse Andrews lost his profits, amounting to $475, his honor erred in overruling said finding of the master and in not allowing the profits on said five hundred cords of wood to the said defendant, J. Hesse Andrews, as part of his damages. 3. Because his honor erred in not sustaining the report of the master, both as to his findings of fact and his conclusions of law.”

1 At the hearing before the master and the Circuit Judge both parties to this contention seemed to fully recognize that when the plaintiffs and their sureties signed the bond in order to obtain an injunction against Andrews, they thereby became liable to pay to him, in case they failed to maintain their right to the injunction, whatever damages Andrews sustained therefrom up to $500. This was as it should be. To invoke the writ of injunction is no light matter. In case it is improvidently sought and obtained, reparation should be made therefor to the party aggrieved. The contention between the parties to this controversy arises from an effort on the part of Andrews to hold the parties to the injunction bond liable for $475, profits lost in 500 cords of wood, which he alleges he was unable to have cut and delivered under his contract with George EL Cornelson, by reason of the operation of the order of injunction served on him on the 3d day of December, 1884, and annulled by Judge Pressley on the 15th day of December, 1884. Both the first and second exceptions are directed to these particular damages. We have carefully examined the whole testimony, having been impressed by the earnest zeal of appellants’ counsel. We cannot hesitate as to our duty in the premises, for a careful attention to the testimony convinces us that Judge Kershaw was right. Let these exceptions be overruled.

2 The last exception is too general to receive attention here-We have heretofore endeavored to impress counsel with the determination of this court to enforce the rule which requires grounds of appeal to be specific, not general. Let the exception be overruled. It is the judgment of this court, that the judgment of the' Circuit Court be affirmed.