177 S.W.2d 537 | Mo. Ct. App. | 1944
This is an original proceeding in prohibition which comes on to be heard following the issuance of our preliminary rule directed to respondent, Honorable Everett Reeves, Special Judge of the Circuit Court of Pemiscot County and issued at the relation of J.B. Latshaw, who was plaintiff in an injunction suit brought in said circuit court.
There is no real controversy over the pleadings and we deem them in all essential respects as sufficient.
Respondent has accepted relator's statement of the case which we adopt here, to-wit:
"Relator as plaintiff, on May 6, 1940, filed a suit against one Lem Simpson in the Circuit Court of Pemiscot County, Missouri, to enjoin him from interfering with relator in farming certain land in said county. On May 7, 1940, said court issued a temporary injunction upon relator filing a bond in said cause; issues were joined and the cause was tried December 18, 1940, and cause taken under advisement until December 30, 1940, when judgment was rendered in favor of plaintiff, making the temporary injunction permanent. The defendant appealed to this court and the judgment was reversed and cause remanded with directions to dissolve the injunction (162 S.W.2d 635), which was done July 8, 1942, during the regular July Term, 1942. Thereupon, at the same term, on July 18, 1942, defendant filed his motion or suggestions to assess damages on the injunction bond. The said July Term, 1942, of said circuit court, adjourned to court in course three months later, October 19, 1942. The said motion or suggestions of defendant was neither submitted nor acted upon at said July Term, and no order made relating thereto.
"At the ensuing November Term, 1942, of said court, relator filed as plaintiff a motion in said cause to dismiss the said motion or suggestions of defendant on the ground that the court was without jurisdiction to assess damages after the expiration of the judgment term. Thereafter, relator was granted a change of judges and the respondent was elected special judge, who overruled relator's said motion to dismiss on March 8, 1943, at the March Term, 1943, of said court and announced from the bench that he would later set said motion or suggestions for damages down for trial.
"Before any setting of said motion or suggestions for hearing was made and during the March Term, 1943, of said court, relator filed his application and suggestions for a writ of prohibition in this court May 3, 1943, and this court issued its preliminary rule the same day, which was duly served on respondent and counsel for defendant and a return thereto was duly made and filed by respondent, which did not deny the facts alleged in relator's application, and thereupon *817 relator duly filed his demurrer to said return, praying that the preliminary rule be made permanent."
It will be observed that the judgment dissolving the injunction was rendered during the regular July Term, 1942, of the Circuit Court of Pemiscot County and thereafter, at the same term, defendant filed his motion or suggestions to assess damages on the injunction bond. The said July Term, 1942, adjourned to court in course, and it appears that the motion was neither submitted nor acted upon at the said term and no order made relating thereto.
The point at issue is whether or not respondent, in this situation, has the power or jurisdiction to hear and determine said motion or suggestions to assess damages on the injunction bond at the subsequent term of court.
In the case of Hoffelmann v. Franke (Mo. Sup.),
The case of Fears v. Riley,
In the case of Sutliff v. Montgomery,
In the case of Konta v. Stock Exchange,
Relator contends that since the statute "makes no provision for process or pleading nor for the time when the damages should be assessed, and the motion to assess the damages is neither a statutory nor a common-law motion, . . . it dies with the lapse of the judgment term."
It is stated in the case of Loehner v. Hill,
Section 1673, Revised Statutes Missouri, 1939 (Sec. 1673, Mo. R.S.A.), provides in part: "Upon a dissolution of an injunction, in whole or in part, damages shall be assessed by a jury, or if neither party require a jury, by the court; . . ."
It is true, this statute makes no provision for process or pleading or time for the assessment. Nevertheless, in order to carry out the purpose and intent of the Legislature, it should be given a reasonable and practical construction and interpretation. It, in effect, dispenses with the necessity of a suit on the injunction bond; it is not ancillary to nor a mere after-judgment proceeding in the injunction suit, but rather assumes the nature and character of an independent action on the injunction bond, and a change of venue can be taken or an appeal granted from the judgment rendered on the motion to assess damages on the injunction bond. [Ry. Co. v. Ry. Co.,
If the motion to assess damages on an injunction bond is filed at the term at which the injunction is finally dissolved, it is our view that *819 it may be continued to a subsequent term. [Sutliff v. Montgomery,supra; Konta v. Stock Exchange, supra.]
We have found no cases, neither have we been cited to any by relator or respondent that seem to be directly in point. However, a review of the foregoing cases show that a motion to assess damages on an injunction bond is well grounded in our jurisprudence and is definitely established as a part of our procedure. It is in its nature and effect a pleading which initiates a proceeding to assess damages in such cases, and if not acted upon and no order is made with respect thereto at the judgment term it carries over to the subsequent term and may be heard at that time.
The cases heretofore reviewed do show the trend of judicial thought, and it is our conclusion, and we so hold, that the respondent in the instant case has jurisdiction and power to hear and determine the motion herein.
Therefore, it necessarily follows that the preliminary rule in prohibition heretofore issued should be quashed. It is so ordered. Blair, P.J., and Smith, J., concur.