Bemis v. Gannett

Cobb, J. This is an action on an injunction bond executed by tbe defendant in error in tbe case of Hattie C. Wren v. George F. Bemis, plaintiff in error. It appears upon tbe face of tbe petition tbat tbe said action was, at tbe commencement of tbis action, still pending and undetermined in tbe court below, but tbat tbe temporary injunc [237] tion upon wbicb said'bond had been executed had been dissolved upon a showing upon affidavits. The defendant in error demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action, and for a defect of parties plaintiff. The court sustained the demurrer and rendered a final judgment thereon, to reverse which the plaintiff brings the case to this court on petition in error. It is conceded that upon the authorities and upon general principles an action cannot be maintained upon an injunction bond until the final determination of the suit in which such bond is given, but the plaintiff in error makes the point that the petition states a case which is admitted by the demurrer, and which shows that the plaintiff in said action cannot possibly recover, and that hence he is not obliged to wait until that suit is finally determined before suing for his damages sustained by reason of the issuance of said injunction. ' • It may be conceded that in this case the defendant, by interposing a general demurrer to the plaintiff’s petition, admits all the facts therein which are well pleaded, yet in the original case which is now pending in the court below the same facts, if set up in an answer to the petition therein, may be denied and disproved, and that case decided in favor of the plaintiff therein, and her injunction reinstated and made perpetual. This court has not nor can it have — for the purposes-of this case — the record in the original suit before it. Indeed it may be that no issue in that case has been made, and if it has it may be materially changed by amendments before the trial and final determination, and even if it were possible for this court to look into the merits of such original case, for the purposes of this ease, it would be obviously improper for it to do so. Eor the purpose of fixing the liability of the parties to the bond the court below alone has the right to [238] look into tbe merits of tbe suit in wbicb it was given, and until it does so and renders final judgment tbereon, or until tbe case is finally determined in some manner known to tbe law, no action can be maintained on tbe bond. See Dowling v. Polack, 18 Cal., 626. Tbe judgment must be affirmed. Judgment aeeirmed.