Large v. Steer

Opinion, Mr. Justice Paxson : This was an action of debt upon an injunction bond. The first three assignments are without merit and do not require discussion. Nor can the fourth assignment of error be sustained. We do not think the pendency of an ejectment and an action for mesne profits in another court, would of itself [33] defeat the right of the plaintiffs below to recover in this proceeding. The suit against David K. Large, the principal, for mesne profits may turn out to be a vain thing, so far as results are concerned, but the plaintiffs have security upon the injunction bond, and if the injunction was wrongly issued and they have been injured thereby, they cannot be deprived of the benefit of this security because the wrongdoer may be proceeded against in another form for mesne profits. The fifth assignment alleges that “ the learned judge below erred in refusing to charge the jury as requested, ‘Under all the evidence the verdict should be in favor of the sureties on the bond, James Kelm & James P. Wallace.’ ” The injunction in question was to restrain Edward J. Steer from further proceeding in a suit before a magistrate to recover the possession of a certain house situated on the east side of 18th street, south of Wood street and from interfering with the collection of the rents, etc. This is a brief but sufficient statement of the scope of the injunction. After various proceedings in the equity suit, the bill appears to have been dismissed by agreement of counsel without prejudice to either party to have their proceedings at law or otherwise. This we learn from the History of the Case and the pleadings. The precise terms of this agreement appear nowhere in the paper books. Was this agreement of counsel dismissing the bill, such a final determination of the cause as fixed the liability of the sureties on the injunction bond? The question is a novel one. We have not been referred to any Pennsylvania case having any bearing upon it. I see no difficulty, however, in disposing of it upon principle. The sureties in an injunction^ bond assume certain obligations. At the same time they have rights which must be respected, and of which they cannot be deprived without their consent. They are entitled to have the case against their principal tried according to the forms of law, and a final decree or judgment entered against him in court. Their liability consists in satisfying any judgment their principal may be condemned to pay. Until there is such a final determination of the equity suit, as shows that the injunction was wrongfully issued, I do not see how an action would lie against the principal in the bond, much less against [34] his sureties. This view is sustained by Hilliard on Injunctions, 84; Bank of Monroe v. Gifford, 35 Iowa 646 ; Penny v. Holberg, 53 Miss. 567; Gray v. Kiers, 33 Mo. 159; Bemis v. Gannett, 3 Neb. 236. The reason for this is, that it may appear upon final hearing that the plaintiff was entitled to his injunction, although it may have been dissolved pending the bill. The sureties on an injunction bond, as before observed, have a right to have the equity suit disposed of by the count in the usual way. There must be a decision upon the' merits, or what is equivalent thereto. Hence it was held by the Supreme Court of Louisiana, in Baker v. Frellson, 32 La. An. 822, that the surety on an injunction bond was discharged by an agreement entered into without his consent, by plaintiff and defendant, to have the equity suit tried and determined in an irregular way, at chambers and after the term of the court had ended. It was said by Chief Justice Bermudez, at p. 831: “ The consent of the parties to the trial of the matter in which, Ludeling, the surety, was sought to be made liable in the manner in which it was tried, without his assent, and the appellant having selected and adopted such course, we think operates as a discharge of the liability of the surety on the injunction bond.” As a general rule the dismissal of a bill by the agreement of the parties is not the equivalent of a decision upon the merits. To this effect are West Shore & B. Ry. Co. v. Omerod, 29 Hun 274; Palmer v. Foley, 71 N. Y. 106 ; Towle v. Lincoln, 59 Ia. 42; Young v. Campbell, 61 How. Pr. 40. That this must be the rule as regards the sureties in an injunction bond, can hardly be doubted. Were it otherwise their liability could be fixed by the agreement of the parties, without their assent, or even their knowledge, instead of by the judgment or decree of the court, as contemplated and tacitly understood when they signed the bond. In the present case, we are informed, there was a decision of the master in favor of the plaintiffs in error, before the agreement by which the bill was dismissed. If said agreement was the equivalent of a decision upon the merits, it nowhere appears in this record. Judgment reversed.