Dougal v. Eby

AILSHIE, J. — On the 1st of June, 1905, the plaintiff, who is appellant in this court, commenced an action against James S. Eby, as constable, and others, and on the filing of the complaint procured a temporary injunction against the defendants in any manner selling or disposing of certain property. On the seventh day of the same month the defendants filed a general demurrer to the complaint, and at the same time gave notice of motion to dissolve the injunction. The motion to dissolve the injunction was made on the pleadings and files in the action and affidavit of D. H. Clyne, one of the defendants;” and a copy of the affidavit of Clyne was served on plaintiff’s attorney. The motion was noticed for June 12th, and it appears from the order of the district judge that it was not submitted for his consideration until the fourteenth day [795] of August, at which time it was taken under advisement, and on the twenty-ninth day of August, the district judge made and entered an order dissolving the injunction, and at the same time made and entered the following order against the sureties on the injunction bond: “And it is further ordered and decreed that judgment be entered herein by the clerk of this court against D. B. Bybee and Franklin Larue, the sureties on the injunction bond filed herein, the same having been ascertained and assessed under the direction of the court in the sum of $75 damages for which execution may issue.” The plaintiff has appealed from both of these orders. The respondent has made a motion to dismiss the appeal on the ground that an order dissolving a temporary injunction is not appealable. Subdivision 3 of section 4807 of the Revised Statutes authorizes an appeal from an order dissolving an injunction and is decisive of the motion on- that ground. The respondent also moves to dismiss on the ground that the transcript is not certified in the manner prescribed by sections 4819 and 4821 of the Revised Statutes. We think the eertifi-' cate of the judge, however, is sufficient, and upon the argument of the ease, counsel for appellant procured an order permitting him to supply the record with a further certificate from the trial judge, which has been done. It is true the record contains some matters not authorized by the statute, but that is not a ground for dismissal of the appeal. The motion must therefore be denied. The appellant complains of the failure of the trial judge to consider a number of affidavits filed on behalf of the plaintiff on June 16, 1905. These affidavits were filed in rebuttal to the evidence of Clyne, and in opposition to the motion to dissolve the injunction. The plaintiff failed, however, to appear at the hearing on the motion to dissolve the injunction, and it is not shown that these affidavits were called to the attention of the trial judge or were ever presented to him. On the contrary, he certifies under section 4821 of the Revised Statutes, that the only papers used or considered on the hearing of the motion were: “The complaint then on file in said case, and the affidavit of D. H. Clyne, as shown by the tran [796] script on appeal, and the sworn statements of J. Ed. Smith, who testified in said matter.” The record contains the complaint and the affidavit of Clyne, but it does not contain any statement or evidence given by Smith. If the respondent desired to present counter-affidavits, it was incumbent on him to see that such affidavits were presented to the judge at the hearing of the motion, and if the judge should then 'have refused to examine or consider them, it would have been appellant’s duty to take exception to such ruling and incorporate such affidavits and showing in a bill of exceptions or have them certified to by the judge as having been presented and rejected in order to present the same to this court on appeal. As the record comes before us with the judge certifying that he considered certain papers and files, and none other, and no showing that the affidavits on behalf of the appellant were presented or called to the attention of the trial judge at the hearing, we are without authority to consider them. They are not properly in the record. (Rev. Stats., secs. 4819, 4821; Village of Sand Point v. Doyle, 9 Idaho, 236, 74 Pac. 861.) After an examination of the complaint and the affidavit of Clyne, we are not prepared to say that the trial judge abused his discretion in dissolving the injunction, and cannot therefore interfere with the order in that respect. (Staples v. Rossi, 7 Idaho, 618, 65 Pac. 67; Kendall v. Lincoln Hardware Co., 8 Idaho, 664; 70 Pac. 1056; Meyer v. First Nat. Bank, 10 Idaho, 175, 77 Pac. 334, Price v. Grice, 10 Idaho, 443, 79 Pac. 387.) The plaintiff and his bondsmen specially complain of that part of the order assessing damages against the sureties on the injunction bond. The appellants contend that the court was without jurisdiction to enter any judgment for damages and costs on the injunction bond until the case shall be finally determined on its merits. Respondent insists, however, that the practice adopted is permissible, and in support thereof cites the opinion of the United States circuit court of appeals for the ninth circuit in the case of Tyler Min. Co. v. Last Chance Min. Co., 90 Fed. 15, 32 C. C. A. 498, a case appealed from the circuit court for the district of Idaho. In [797] that case the court held that: “A court of equity, on the dissolution of an injunction, may, under its general powers, and in the absence of statutory provisions, have the damages occasioned by its issuance assessed under its own direction, and may render judgment therefor against the sureties as an incident to the principal suit.” The practice upheld in the Tyler-Last Chance case rests on the rule of the English chancery courts (2 High on Injunctions, 4th ed., sec. 1656), and has received at least a partial recognition in the federal courts of this country where no statutory provisions control. The wisdom of this practice was doubted, however, in Russell v. Farley, 105 U. S. 445, 26 L. ed. 1064. It should be borne in mind that in this state we have a statute providing the manner of giving injunction bonds and the liability of sureties thereon and the conditions on which the liability attaches. Section 4291 of the Revised Statutes requires a plaintiff who procures an order for an injunction to give an undertaking “with sufficient sureties to the effect that the plaintiff will pay to the party enjoined such costs, damages and reasonable counsel fees, not exceeding an amount to be specified, as such party may incur or sustain by reason of the injunction, if the court finally decide that the plaintiff was not entitled thereto.” This statute was adopted from California (Code Civ. Proc., sec. 529), and in Clark v. Clayton, 61 Cal. 634, it was held that an action commenced on an injunction bond prior to the final determination of the principal ease was prematurely brought and that a nonsuit was properly granted. In Dougherty v. Dore, 63 Cal. 170, the court'held that “a cause of action upon an undertaking for an injunction does not accrue until the final determination of the action upon which the injunction was obtained. ’ ’ The doctrine announced in this latter case has support in the following authorities: 1 Spelling on Injunctions and Extraordinary Remedies, sec. 957; 2 High on Injunctions, 4th ed., secs. 1649-1654; Supreme Court I. O. F. v. Supreme Court U. O. F., 94 Wis. 234, 68 N. W. 1011; Reddick v. Webb, 6 Okla. 392, 50 Pac. 363; Cohn v. Lehman, 93 Mo. 574, 6 S. W. 267; Browne v. Edwards & McCullough Lumber Co., 44 Neb. 361, 62 N. W. 1070; [798] Brown v. Galena M. & S. Co., 32 Kan. 528, 4 Pac. 1013; Asevado v. Orr, 100 Cal. 293, 34 Pac. 777. We fail to find any case from California, or any other state 'where they have a like statute, in which the practice of entering judgment against the principal and sureties on an injunction bond by the court in the main case and without the commencement of an action on the bond bringing in the sureties, has ever received sanction or approval. The bond required to be executed upon the issuance, of an injunction constitutes a contract whereby the principal and sureties agree to indemnify the defendant against loss in the matter of costs, damages and attorney’s fees incurred by reason of the injunction in case it should finally be determined that the plaintiff was not entitled thereto. Whenever the defendant claims that there has been a breach of such contract, and that he is entitled to recover for such breach, the defendants are entitled to their day in court and their right to defend both against the charge that there has been a breach in the contract as well as against the amount of costs, damages and counsel fees claimed. We conclude that the order dissolving the injunction must be affirmed, and that the judgment entered against the bondsmen for $75 damages for breach of the injunction bond must be reversed and vacated, and it is so ordered. The appellant will be awarded costs for one-half his transcript and such other costs as are legally taxable. Stockslager, C. J., and Sullivan, J., concur.