25 Kan. 71 | Kan. | 1881
The opinion of the court was delivered by
This was an action on an injunction bond. Two questions only are presented. The bond was conditioned to “pay all costs and damages which may be awarded against them on the final hearing in this cause by the court.” It appears that the injunction was dissolved, but the terms of the order of dissolution are not shown.
First, it is contended that, as it is not shown that any damages were awarded in the action in which the bond was given, none can be recovered, the liability of sureties being limited to the express terms of the contract. The bond was given under § 242 of the code, which requires the party obtaining an injunction order to give an undertaking “to secure to the party injured the damages he may sustain, if it be finally decided that the injunction ought not to have been granted.” If the language of the bond or undertaking had followed the statute, there would be no doubt as to the liability. But it must be presumed to have been under that statute, as there is none other applicable; and the plaintiff brought and obtained by means of such bond the injunction. Even a void bond has been enforced against the obligors, when they have received the full benefit thereof, and this upon the doctrine of estoppel. (Daniels v. Tearney, [Sup. Court U. S.,] 11 Rep., p. 113.) In that case it appeared that the bond was given in compliance with a statute of Virginia made to aid in the in-surrectionary movements of 1861. The bond was therefore
The other question is, whether the defendant in the injunction suit can recover the fees of his attorney for services in obtaining a dissolution of the injunction before he has paid them. In this case the amount was agreed upon and the sum was reasonable. The defendant’s liability was absolute, but the fees had not in fact been paid. With perhaps the single exception of California, the authorities agree that if the liability is fixed and absolute, it is enough; payment is not an essential prerequisite. (Garrett v. Logan, 19 Ala. 344; Miller v. Garrett, 35 Ala. 96; McRae v. Brown, 12 La. Ann. 181; Brown v. Jones, 5 Nev. 374; Noble v. Arnold, 23 Ohio St.
There being- no other question in this case, the judgment will be affirmed.