City of Racine v. Barnes

By the Cowl, WiutoN, C. J. The question presented by this record is one of pleading, merely. It appears that the plaintiffs commenced an action of debt on an injunction bond, conditioned to pay to the plaintiffs such damages as they should bo entitled to in consequence of the issuing of the injunction, &c. The defendants, after craving and obtaining oyer of the bond and condition, pleaded a general performance. The plaintiff then filed a replication setting forth that the injunction was obtained for the purpose of restraining ihe plaintiff from erecting a bridge across Eoot river, and, (after stating facts to show the nature and extent of the damages which the plaintiff'had sustained by means of the issuing of the injunction), avering that the said injunction was dissolved by the circuit court, of Eacine county. The defendants then filed a rejoinder, avering that after the making of the order dissolving the injunction, by the circuit court, an appeal was taken by the present defendants, (who were the complainants in the injunction suit,) from the said [476] order of the circuit court to the supreme court; and that such proceedings were afterwards had therein in the supreme court; that the said order of the circuit court dissolving the said injunction was reversed, and an order made remanding the cause to the said circuit court, and directing said court to decree a perpetual injunction restraining the present plaintiffs from erecting said bridge. To this rejoinder the plaintiffs demurred; the court below overruled the demurrer and rendered judgment for the defendants. It is claimed by the plaintiffs that this judgment is erroneous, because the rejoinder is a departure from the plea. We think it correct. It will be observed that the breaches are set out by the plaintiffs in their replication. The defendants conlcl not therefore set out the facts upon which they relied for their defense in their plea. They could only plead a general performance of the conditions of the bond, and they •were at liberty to set up any defense to the breaches assigned in the replication which would not be a departure from the general performance relied upon in the plea. The defendants could not be allowed, after they had pleaded such a plea, to set up any matter in their rejoinder in excuse of performance. (Co. Litt., 304, a; Com. Dig., Pleader, F. C; 2 Sannd., 83); because that would bo entirely inconsistent with the fact set up in the plea; and they have not done so ; they have merely set up matter as a defense to the facts stated in the replication, and not inconsistent with the geneial pciformance alleged in their plea ; and this they had a right to do. 1 Chitty Pl., 684; Allen vs. Watson, 16 J. R., 205; Bame vs. Drew, 4 Denio, 287; Darling vs. Chapman, 14 Mass. R., 103. lint it is said by the counsel for the plaintiff in error, that the rejoinder is not an answer to the breaches assigned in the replication, because when the injunction was dissolved by the circuit court, a riglu of action accrued upon the bond, and if the order of the court bad not been appealed front, the rights of the parties to the injunction bond would have been fixed. We suppose that under our former chancery practice, an [477] appeal from a final order or decree of the circuit court in a chancery case, was a removal of the same case to this court. The effect of the appeal was to procure a re-hearing of the case upon the same pleadings and testimony. Although, therefore, the order which was made in the circuit court, dissolving the injunction, would have been final and conclusive if it had not been appealed from, yet the appeal procured a continuation of the same case in. this court. In this court alone could a final decree be made it either of the parties chose to appeal. The rejoinder, therefore, by setting up the appeal, and the proceedings in this court by which the order of the circuit court was reversed, shows merely further proceedings in the same case. The rejoinder continues the history of the cas.e, from the point at which the replication leaves it, to its final termination, and shows that the plaintiffs are not entitled to recover upon the bond ; and, as we have before stated, is in our opinion no departure from the plea. Judgment affirmed.