9 Neb. 212 | Neb. | 1879
Two questions are raised by the demurrer in this case. 1st, That there is no breach of the conditions of' the undertaking. 2d,' That the petition shows on its face want of capacity to sue, the action being brought in a partnership name, and the petition, though giving the names of the members of the firm, contains no allegation as to its having been formed for the purpose of carrying on business, etc., in this state.
The statute gives no form for an undertaking in injunction. Section 255, on page 567, General Statutes, does not purport to give a form, but to point out the sfibstance of the required undertaking. I think that the undertaking, a copy of which is attached to the petition, complies substantially with the provisions of the statute, and that the breach of the conditions thereof as set out in the petition substantially states a cause of action. It is in the following words:, “ That afterwards, to-wit, on or about the-day of February, 1876, it was found by the judge of the district court of Jefferson county, Nebraska, at chambers, that the petition of said Joseph H. Smith in said injunction action did not contain a statement, of facts sufficient to justify the issuance of said injunction. And said injunction was then and there dissolved, and said action of injunction was afterwards dismissed, at the cost of the said Joseph H. Smith, by the district court of said Jefferson county. That by reason of said injunction in said action plaintiffs were damaged in the sum of seventy-five dollars in -this, to-wit, for the time and trouble spent
Certainly the action of the judge at chambers dissolving the injunction, and afterwards of the court dismissing the suit at the cost of the plaintiffs, taken together, were equivalent to a decision “that the injunction ought not to have been granted.”
The plaintiffs in error cite authorities to the effect that they being mere sureties, the extent of their liability is to be measured by the letter of their bond. It is scarcely necessary to quote an array of authorities to sustain this position; if it were, they are abundant. I regard the case at bar as entirely within this 'rule. The petition sets out the facts in the case, and I think that the court below, in deciding upon the demurrer, drew the proper conclusions, and that in so doing did no violence to the above rule of law.
As to the second point. The plaintiffs are in error in this, that the suit was brought in a partnership name, although certainly not in the sense of § 24, of chap. 57, General Statutes. The suit was brought in the names of Hanson Gregg, Albei’t Torian, axid Masoxx Gregg, late pax'tners uxxder the firm name axxd style of Gregg, Toxian & Co,, plaintiffs, etc. To do this they were not depexxdent upon the provisions of the statute in question, which provides that “ any company or association of persons fox*med for the purpose of eaiTying on any trade or busixxess, or for the purpose of holding any species of propex'ty in this state, and xxot incox’porated, may sire and be sued by such usual name as such company, partnership, or association may have assumed to
It therefore follows that the judgment of the district court must be affirmed.
Judgment aeeirmed.