Nolan v. Johns

27 Mo. App. 502 | Mo. Ct. App. | 1887

Ellison, J.

This action was brought by plaintiff as administrator of the estate of I. H. Reed. The following statement is sufficient for an understanding of the case so far as concerns the points we deem material to consider:

Johns & Gordon, on May 28, 1883, made their note for $1,892.50 in favor of Sophronia Reed, and secured it by a chattel mortgage upon the stock of two livery-stables and by a deed of trust upon the two stables and another house and lot in Higginsville, Missouri. Subsequently, J. H. Johns made his note for $1,892.50 to .the administrator of I. H. Reed’s estate, and secured it by a mortgage upon an undivided one half of the same livery-stables and stock. In February, 1884, O. . A. Jones, claiming to own tbe Sophronia Reed note, by assignment, advertised tbe livery stock for sale under tbe chattel mortgage given to secure tbat note. This suit was brought to enjoin this sale, and tbe injunction was asked on two grounds: (1) because tbe Sophronia Reed note belonged to tbe plaintiff, as tbe administrator of I. H. Reed, and not to O. A. Jones; and (2) because the owner of this note, whoever be was, ought to be required to first resort to bis separate security. A temporary injunction was granted. In March, 1884, O. A. Jones advertised tbe two livery-stables and the other bouse and lot in Higginsville for sale under tbe deed of trust given to secure tbe Sophronia Reed note. Nolan thereupon applied for and obtained an extension of tbe restraining order already given so as to enjoin this sale.

This injunction was dissolved after a bearing before tbe trial court. At tbe same term a motion for rehearing was filed by tbe plaintiffs, and a motion to assess, damages by Ó. A. Jones. At tbe next term attorneys appeared for the sureties on Nolan’s injunction bond, and informed the court tbat Nolan’s letters of administration bad been revoked by tbe probate court of Jackson county, Missouri, since the last term. Tbe court, thereupon, ordered that tbe name of Harmon Bell be substituted for tbat of Nolan, as plaintiff, although Harmon Bell was not in court, either by attorney or by service of process; overruled tbe motion for rehearing on tbe motion to dissolve ; and proceeded at once to try tbe motion of O. A. Jones for tbe assessment of damages. Judgment was given for $1,729.68, and Nolan being no longer plaintiff, and Bell bis successor, who had been substituted as plaintiff, not being in court, tbe judgment was given against tbe sureties only. The conditions of tbe injunction bond are as follows: “Now, if plaintiff shall abide tbe decision which shall be .made thereon, and pay all sums of money, damages and costs tbat shall be adjudged against him if the said injunction shall be dissolved, then the obligation to be null and void; otherwise to be and remain in full force and effect.” The “letter of the bond” is that judgment must first be rendered against the plaintiff, and this is a condition precedent to a liability on the part of the sureties. As this was not done in this case it will for that reason be remanded. Dorris v. Carter, 67 Mo. 544; High on Injunction, sects. 1635, 1640.

As the cause is to be remanded, it is proper to give our view on another point appearing here by the record? and which will arise in subsequent proceedings. It is our opinion that had the judgment included the plaintiff with the sureties, it would still not be good. A judgment cannot be rendered summarily against the sureties on an injunction bond. It is not so especially agreed in the bond, there is no statutory authority for it, and it is not in accordance with the established rules of chancery practice. Neither can a judgment be rendered against the sureties in any proceeding, summary or otherwise, 'until after a judgment has been taken against the plaintiff as provided by statute. The condition of an injunction bond is, that the plaintiff will pay all sums of money, damages, and costs, that shall be adjudged against him. Rev. Stat., sect. 2710. The damages referred to in this condition, as being such as the plaintiff must pay, are to be assessed by a jury (sect. 2712), that is, assessed by a jury against the plaintiff. There is no authority for assessing them against the sureties, but they must be adjudged against the plaintiff, and if then he fails to pay them, the condition is broken, and the sureties must respond. The sureties áre not liable except upon the bond after a breach thereof, and there is no provision of law authorizing an enforcement of that liability except by a direct proceeding upon the bond.

This view of the statute, we think, we may fairly infer is held by the Supreme Court. Dorris v. Carter, supra. But if we are mistaken in drawing this inference from that case, our opinion is fortified by other authority. Such summary proceeding on the dissolution of an injunction is not within the power of a coil it of equity in the absence of sjjecial legislation. High on Injunction, sect. 1657. It was not the practice of the English High Court of Chancery. Bein v. Heath, 12 How. 168.

As seen above, our statute does not provide for such remedy against the sureties. There is no reason in the contention that it does. The language of the condition is, that the sureties will pay the damages which “ shall be adjudged against him,” the plaintiff. There must, therefore, be a judgment against the plaintiff for the damage before there is breach of the sureties’ contract. In this case the judgment was rendered against the sureties on a bond that had not been broken. It will not do to render judgment against the plaintiff and sureties together at one and the same time in the first instance, for the sureties are not liable till after judgment against the plaintiff and his refusal to pay, A judgment cannot be rendered against a person on a contract which has not yet been violated and on which a. suit cannot yet be maintained. As was said in Brownfield v. Brownfield (58 Ill. 152), there must be a breach in fact before the institution of the suit. After this breach, which is the foundation of the suit on the bond, the plaintiff, being one of the obligors, can, of course, be sued jointly with the sureties and a joint judgment had. We are content with the action of the court in dissolving the injunction, but think Nolan’s successor-should be in court before proceeding to adjudge damages, etc.

The judgment assessing damages, for the reasons, herein given, is reversed and the cause remanded. ■

All concur.