40 Mo. App. 243 | Mo. Ct. App. | 1890
In March, 1884, the respondent Jones owned and held a note for $1,892.50, then past due, and signed by one Reed. Jones also held, as a security for said note, a deed of trust on some real estate in Higgins-ville, Missouri, as also a chattel mortgage on some livery stock in the town of Higginsville. There were prior incumbrances held by another party on both the real and personal propery. Default being made in payment of Jones ’ note, he was proceeding to sell this real estate and personal property, subject to the prior liens, and for that purpose had advertised a public sale, when on March 29, 1884, Coates, the former assignee of the Mastín Bank, and plaintiff’s predecessor, and Nolan, Reed’s administrator, brought two separate injunction suits, the one seeking to enjoin the sale of the real estate and the other to prevent the sale of the livery stock. To secure a temporary injunction, Coates presented a bond made by John J. Mastín “as principal for the plaintiff ” and D. C. Mastín as security, and which was approved, and the interlocutory order enjoining defendant Jones was issued. Nolan likewise secured bond and the two cases, it seems, involving the same issues, were ultimately tried in the Johnson circuit court, where defendant Jones was successful, and the two injunctions dissolved. Thereupon both cases were appealed to this court and were affirmed, in so far as the dissolution of the injunctions was concerned, but reversed and remanded on the matter of assessing and entering up judgments for damages against the securities in the injunction bonds. 27 Mo. App. 502-510. Before this cause was again reached in the circuit court Assignee Coates died, and Teasdale, his successor, was substituted in the action.
Acting upon the suggestion of this court, when the cause was heretofore heard, defendant Jones sought to
I. We can see no legal objection, whatever, to the revival of this cause as againát Teasdale, assignee and successor of Coates, and shall, therefore, first address ourselves to point 4 in plaintiff ’ s brief, the first substantial question raised in this record.
It is contended, in the words of counsel, that “ under the injunction bond in this case no judgment for damages can properly be given against the plaintiff, because neither the plaintiff, nor his predecessor, as assignee, was a party to the injunction bond.” In the early history of equity jurisprudence temporary injunctions were often issued by the chancellor simply on the ex parte showing made by the plaintiff and without requiring any bond or other security ; and, if on a final hearing, it transpired that the injunction was without just cause, and was, therefore, dissolved, the party enjoined could not recover damages occasioned thereby, unless it was shown that the injunction was sued out through malice and want of probable cause. In other words, the only relief for injury, however grievous or oppressive, the defendant had on defeating a wrongful writ of injunction, was an action, as in other cases, for malicious prosecution. And to sustain this, of course, it was necessary to allege, and prove, that the injunction was sued out through malice and want of probable cause. The frequent injustice and great, but irreparable, damage thus following hasty and ill-advised injunctions encouraged the equity courts to require, in their discretion, the plaintiff, when asking this extraordinary writ, to
Now we have here, in the history of this case, a temporary injunction granted, prohibiting defendant Jones from foreclosing his deed of trust, and this interlocutory order was issued only after plaintiff had furnished the bond- — not a bond, it is true, signed by the plaintiff., but, in the words of the statute, executed by a “ responsible person for him” (the said plaintiff) with security satisfactory to the court issuing the injunction. The condition of this bond so given by a ‘ ‘ responsible person 5 ’ for the plaintiff, is this, to-wit:
“ Now if said plaintiff shall abide the decision which shall be made thereon, and pay all sums of money,
“[Signed] John J. Mastín, (Seal.)
“David O. Mastín. ( Seal.)”
At the final hearing in the circuit court this injunction was dissolved, and at the time the court proceeded, on motion, to assess the damages and render judgment therefor against- the sureties on the bond. These sureties appealing to this court, we held (27 Mo. App. 510) that such a judgment against the sureties was premature — that by the terms of their bond they were only liable for the default of the plaintiff in failing to pay the damages which might be assessed against him. The cause was remanded and now we have a judgment against plaintiff alone for the damages secured by the bond, and plaintiff contends that no such judgment can be rendered as he (nor his predecessors) was. not an obligor in such bond. To adopt this contention leads to this anomalous and absurd result, to-wit: That there is no indemnity whatever here provided for this-wronged defendant. He has already been advised (and correctly, too) that he cannot recover his damages from the sureties until he had exhausted his remedy — procured a • fruitless judgment for damages against the plaintiff — and now we are asked to say that he cannot get a judgment against the plaintiff. Under the conditions of this bond these sureties are only liable for such damages as may be adjudged against the plaintiff’, and if no damages can be awarded against him then such a bond is entirely worthless, although it is just the bond directed by the statute — contains-the statutory conditions in the very words of the statute ; and though the plaintiff (or his predecessor) is not a nominal maker, yet said bond is'executed, as the statute says it may be, by “ some responsible person for said plaintiff.”
It comports with rule 5 and practice in equity courts, even in the absence of statutes requiring security, to demand valuables of some kind to secure the defendant; and in-such cases, if the injunction be dissolved, the damages would be assessed by the court, and then such security condemned to the satisfaction of a judgment for such damages. Palmer v. Foley, 71 N. Y. 108; Sturgis v. Knapp, 33 Vt. 520, 521; Russell v. Farley, 105 U. S. 445; St. Louis v. Gas Co., 82 Mo. 354. We decide, then, that the damages hére complained of are properly assessable against the plaintiff assignee.
II. What damages now, or, rather, what losses or expenses, are to be considered in this summary proceeding against plaintiff ? It will not be disputed that only such will be charged up against the plaintiff in this proceeding as are assumed by the giving of the bond for securing the same. The statute contemplates an assessment of only such damages as result from the issuing of
We find, upon an investigation of the testimony, that we can satisfactorily separate'these illegal items of charge from those to which defendant Jones is entitled, and shall do so, and direct the lower court as to what the judgment should be, and thereby put an end to this protracted litigation. In our opinion, the theory of division of the aggregate damages between the two injunction suits, as adopted by the circuit court, was fair and just, and, after deducting the illegal charges, as above alluded to, we find that the judgment of the circuit court should have been for the defendant Jones in the sum of'$1,865.40, instead of $1,985.80.
We, therefore, reverse the judgment of the circuit court, and remand the cause with directions that the