Ducket v. Price

Beck, O. J. Appellants brought suit in the court below upon an injunction bond, averring in their complaint the dissolution of the injunction, and stating several claims for damages accruing to them by the wrongful suing out of the injunction. Appellees, who are the principals and sureties upon the injunction bond, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the appellants amended their complaint; appellees demurred to the amended complaint, assigning the same ground of demurrer. The court again sustained the demurrer, and, appellants declining to plead further, judgment was given for the appellees dismissing the complaint, and for costs, from which judgment the appellants have prosecuted this appeal. The appellees have made no appearance in this court, and the cause has been heard ex parte. We are therefore not advised by the appellees what they rely upon as the fatal defect or defects in the complaint, which can be reached by a general demurrer. No damages were awarded on dissolution of the injunction,, nor have any been assessed and awarded in any proceeding instituted for the purpose since its dissolution. [85] Courts have held, under dissimilar statutes, however, that no right of action accrued upon an injunction bond until damages were assessed and awarded against the complainants in the injunction proceedings. Section 139 of our Civil Code provides that this shall not be necessary in cases of this character, but that principal and surety may be 'sued- together in’ the first instance, and the damages assessed and awarded in such action. If, therefore, this objection be relied upon, it is untenable. We are of opinion that other objections to the complaint, if they exist, should be specially assigned. The judgment is reversed and the cause remanded for further proceedings. Reversed.