Stewart v. Miller

1 Mont. 301 | Mont. | 1871

Warren, C. J.

In this transcript of the record there appeared a clerk’s entry to the effect that ‘ ‘ the statement upon motion for a new trial being settled this day by the court, the respective parties waive the necessity of engrossing the same to be used upon the hearing of the said motion,’ ’ and the transcript contains what purports to be the instructions excepted to, and the evidence given and offered on the trial. The cause was argued and submitted in this court at the last term, and in lieu of perfecting the transcript by procuring the omitted certificate of settlement of the statement, and objections to the transcript being waived by agreement of the parties in this court, the cause was heard, by leave of court, upon the basis of the statement appearing in the transcript, as though properly certified. While oral agreements of attorneys are to be disregarded, and the entry of them by a clerk gives them no additional validity so as to entitle them to notice on appeal, the respondents in this case having admitted the statement in this transcript to be the one settled by the judge below and referred to on the motion for a new trial, and the cause having been submitted upon this basis, we will, consider the errors assigned upon it, although the practice is bad and not to be regarded as precedent.

The action is brought upon an injunction bond. The statement shows that appellants offered in evidence on the trial the record of proceedings had in the action in which the bond was given for the purpose of showing that the action was dismissed and the injunction dissolved for the reason that another action theretofore commenced was pending and undetermined in the same court between the same parties and involving the same subject-matter ; and that the court, upon such dismissal and dissolution, holding that the application for the injunction sought should have been made in the original action and not in a separate and independent-action, by order permitted the complaint filed in the latter suit to stand as an affidavit for an injunction in the original action, and the summons to be regarded as a notice to defendants of such application; all of which evidence the court excluded from the jury, to which ruling appellants excepted. In this the court erred.

Where the dissolution of an injunction is not consequent upon a final determination or adjudication upon the merits of the action, the obligors in the bond may, according to the weight of authority and principle, show the facts and circumstances entitling them to the injunction, if not in full .defense, at least in mitigation of damages in an action upon the bond, the order of dissolution being in such cases only prima facie evidence that the injunction was improperly issued. This has been held otherwise in some of the cases cited, but seems founded in sound principle, as otherwise, the obligees in a bond given in a cause in which the action was dismissed or the injunction dissolved, upon some formal matter, although the plaintiff' was in equity entitled to the protection demanded, would, in an action upon the bond, stand upon the same footing in respect to damages recoverable, as though the injunction was obtained without a shadow of equity, or even maliciously, and through perjury. This we cannot believe to be the law, and the evidence offered in this action should have been admitted.

The bond, too, having been executed by the defendants to the plaintiffs below jointly, it was necessary to a complete determination of the rights of the parties, that all should have been in court, in order to apportion damages claimed, and if any of the obligees refused to join as plaintiffs, the court, upon the showing made, should have ordered them brought in as defendants.

The judgment is set aside and the cause remanded for a new trial.

Exceptions sustained.