Cummings, Kenney & Co. v. Mugge

Mr. Justice Dickey delivered the opinion of the Court: On the 30th day of January, 1874, George Mugge, the appellee, filed a bill in chancery in the circuit court of Gallatin county, against Cummings, Kenney & Co., appellants, charging that complainant, who resided in Shawneetown, was the owner of about 500,000 feet of black walnut lumber, worth about $15,000, stacked on the bank of the Wabash river at a point about 18 miles from Shawneetown, and that defendants, by their agent, one Gravett, were about to seize and take away the lumber, claiming, contrary to the truth, that it was then their property, (setting out the alleged circumstances under which the alleged false claim of'property was set up by the appellants.) It was also charged in the bill that the location of the lumber in question was such that the same could easily be removed with boats and barges before the aid of the law could be invoked, and stating that appellants were residents of Massachusetts, and that their agent, Gravett, was of doubtful solvency. The prayer of the bill was for an injunction restraining appellants, their agents, servants, etc., from removing or in any manner intermeddling with said 500,000 feet of lumber, and for other relief. This bill was verified by the oath of appellee. On application to the judge of the circuit court on the same day, an order for the issue of the writ of injunction was made upon the execution of a bond, and on the same day the bond with sureties was given and the writ issued. On the 24th of February, 1874, on motion of appellants, the injunction was dissolved by order of the circuit court made at chambers. Thereupon appellants filed their suggestion of damages and presented testimony to prove the same, and moved the court for an allowance of the same. This claim for damages embraced— Alleged value of 200,000 ft. of lumber, - - $8400 Wages of agent, ------ 153 Wages of watchman, ----- 25 Cost of telegrams, ----- 60 Traveling expenses, ------ 49 “ “ ..... 18 Interest on value of lumber, - - - - 70 Attorney’s fees, ------ 1000 Total, -------- $9721 On the 26th of May, 1874, complainant, in open court, by leave of court, dismissed his bill without prejudice and at his costs, but the court retained the case for the assessment of appellants’ damages. On June 4, 1874, after the bill was dismissed, appellants filed an answer. On June 14, 1874, on application of appellants, the venue was changed to Saline county. In their answer appellants aver, that of the lumber so on the bank of the river when the bill was filed, some 150,000 to 200,000 feet was the property of appellants, worth from $6000 to $8000—and say that Mugge was and is of doubtful solvency, —and that on the 28th of January, 1874, Mugge having taken possession of appellants’ lumber, they sued out a writ of replevin for said lumber, and placed the same in the hands of the sheriff to execute, and that the sheriff on that day took possession of said lumber, and afterwards and on the 30th of January, 1874, while the lumber was so in the possession of the sheriff, the injunction in this case was issued. The answer further says, that since the issuing of the writ of injunction, the appellee has taken possession of said lumber and removed it out of this State, and to parts unknown. On the suggestion of damages, proofs were taken and such proceedings had, from time to time, that at the May term, 1876, the matter was heard by the circuit court of Saline county, and appellants’damages assessed at the sum of $500, and judgment was entered against the appellee for such damages and for costs. Appellants bring the record here, and seek a reversal of this judgment upon the ground that the damages are not so large as they'had a lawful right to have assessed. Appellants, by their counsel, claim that the proofs taken show that the lumber in question was their property, and that while they were restrained by the injunction from meddling with the same, appellee wrongfully took and disposed of the same to his own use, and that the necessary expense of collecting and presenting this proof upon the assessmept of damages was large; and counsel insist that appellants were entitled by law to have the value of the lumber and these expenses included in the assessment of damages. This position can not be sustained. The service of the writ of injunction in no way authorized or caused the wrongful act of appellee, in taking and converting the property. The dismissal of the bill and the dissolution of the injunction Avere conclusive that the injunction was wrongfully sued out. The only question on the assessment of damages was, (assuming the appellee to have been all wrong in suing out the injunction) to what extent Avere appellants injured by being delayed some three weeks in taking and caring for the lumber and in procuring a dissolution of the injunction. Wrongs suffered during that time by unlawful acts of appellee, other than the improvident act of suing out the injunction, constitute no part of the damages caused by the injunction. ■ The sureties who joined in the injunction bond did not thereby make themselves liable for damages resulting from any wrongful acts of appellee, which he had done or might' thereafter do, save damages which naturally resulted from the legal effect of the writ of injunction. The decree of the circuit court must be affirmed. Decree affirmed.