August Gast Bank Note & Lithographing Co. v. Fennimore Association No. 5

BOND, J. This cause was here on a former appeal (79 Mo. App. 612), from the report of which it appears that it was a suit to enjoin defendants, who it is alleged were engaged in a strike from the use of violence against the employees of plaintiff for the purpose of preventing service on their part as such employees. There was an answer, and motion to dissolve the injunction awarded when the suit was instituted made by that portion of defendants on whom the gravamen of the suit rested, which motion was sustained. Subsequently the remaining defendants answered and moved the dissolution of the injunction as to themselves, and this motion was likewise sustained, whereupon plaintiff appealed, and the judgment of the circuit court was affirmed in this court, and the cause remanded, with suggestion that the two motions for the assessment of damages filed by the respective suits of defendants should be heard and “treated as one motion,” to the end that one final judgment could be rendered. This suggestion was adopted on the remand of the cause, and the motions for assessment of damages were submitted to the court without a jury. On the hearing the movers adduced evidence of the services ánd their value rendered by [232] their attorneys in and about the procuring the dissolution of the injunction and on the appeal. No declarations of law were asked or given. The court found for the movers and assessed their damages at $500, and rendered judgment for that sum on the bond ■ given for the injunction. Plaintiff asked for a new trial, which was refused. Plaintiff took no exception to the overruling of its motion for a new trial, but appealed to this court. In the state of the record disclosed on this appeal there is nothing before us for review but the record proper, for the failure of the appellant to except to the order overruling its motion for a new trial deprives us of the power to pass upon any matters of exception embraced in the bill of exceptions. Abbott v. Gillum, 146 Mo. 176, and cases cited. No error is apparent on the record proper. The judgment must therefore be affirmed. "We are asked by respondents to , do this with ten per cent- damages. A careful examination of the brief of appellant fails to suggest any questions of law which can be considered fairly debatable. The brief seems to maintain first, that the injunction merely restrained defendants from unlawful acts, and therefore, occasioned them no injury. This contention ignores the fact that the judgment of the circuit court dissolving that injunction, which was affirmed by us, establishes that it did constitute an illegal restraint upon defendants and also that the allegations upon which it was issued were unsustained by the evidence presented on the motions to dissolve. The second point urged in the brief of appellant is that the judgment is excessive, in support of which it is suggested that the evidence preserved in the bill of exceptions tended to show not only the value and extent of the services rendered in procuring the dissolution of the injunction, but also the services of the attorneys in ulterior' steps taken in the case. If appellant had excepted to the [233] overruling of its motion for new trial (which it did not) so that we could be privileged to examine the matters of excep-' tion contained therein, it would be found that the bill of exceptions presents a complete answer to this point, in that it shows that appellant did not in any way obtain a ruling of the trial court upon the competency and probative force of the testimony adduced on the hearing of the motion to assess damages; nor did it request any declaration of law excluding from the view of the trier of the facts that portion of the evidence referred to in its brief in this court. The bill of exceptions contains abundant evidence supporting the finding of the court. It is clear, therefore, that the point now insisted upon by appellant is wholly meritless. We can not escape the view that the present appeal is a frivolous and vexatious one, and that respondents are justly entitled under the statute (R. S. 1899, sec. 861), to an affirmance of the judgment in their favor, with ten per cent damages. Judge Bland concurs; Judge Biggs absent.