Patterson v. Rinard

Mr. Justice Worthington delivered the opinion of the court. Appellant assigns for error: First, that the court admitted improper evidence on the part of appellees.. Second, that the verdict and judgment is contrary to the law and evidence. A jury was waived and the case tried by the court. Ho holdings of law were asked. Objections- were made to the introduction of the injunction bond; also to the decree of the court assessing the damages for wrongfully suing out the injunction at $300, and that J. E. Creighton et al., obligees in the bond, should recover that sum to be paid, $150 to Funkhouser & Eider, and $150 to Hanna & Hanna. The objections were properly overruled. The evidence was competent and material. Appellant insists that there can be no recovery in this suit on the bond in the names of the obligees for the use of their attorneys. Ho authorities are cited which support this proposition. Burgett v. Paxton, 15 Ill. App. 379, referred to by appellant, is not in point. It only decides that when obligees are not damaged, that they can not maintain an action on the bond in their names, for some one who is damaged. In the case at bar, the obligees were damaged to the amount of their attorney fees for dissolving the injunction. Nor was it necessary that they should have paid these fees before bringing suit on the bond. They are damaged in the eyes of the law when they have become legally responsible for them. Their right of recovery is perfect, when, after the dissolution of the injunction, their damages have been legally assessed. The relation of the surety is in no manner changed by the suit to recover damages being brought in the name of the obligees for the use of their attorneys. When he pays the judgment it will be immaterial to him whether the money goes to the obligees and from them to their attorneys, or whether it goes directly to the attorneys without passing through the hands of the obligees.. The payment discharges both principal and surety, and that is all the interest they have in the matter. Counsel for appellant say, “ when an injunction is dissolved by agreement, it is not within the statutory mode for assessment of damages.” It is sufficient in reply to say, that the record does not show that the injunction was dissolved by agreement. On the contrary, it does show that it was dissolved on motion of defendants, months before the case was settled; and further, that although leave was given to file a supplemental bill, that it does not appear that any supplemental bill was ever filed, and the motion to reinstate the injunction was continued until a final hearing upon the original bill, answer, replication and supplemental bill. In other words, the order dissolving the injunction, stood unimpaired and unaffected by any subsequent orders or decrees. The settlement of the case on March 17,1896, as shown by the stipulation in evidence, in no way affected the right of obligees in the bond to recover damages for the wrongful suing out of the injunction. These damages accrued to them when the injunction was dissolved on their motion, September 21,1895. The stipulation shows that amount of these damages was not settled but was left tobe determined by the court if the parties could not agree upon the amount. Not agreeing, they were assessed by the court as damages are assessed in like cases. There was nothing in the settlement of the case then, that would release the surety on the bond. A complainant may even dismiss his bill, where there is no fraud, and its dismissal will not release the surety on the injunction bond, although done by agreement with the defendant in the bill. Boynton v. Phelps, 52 Ill. 210. .In this case cited, the action was brought by the obligees in the bond for the use of other parties. Appellant urges that there is no proof that the court heard evidence upon suggestions of damages filed. This objection comes too late in a suit on the bond for an amount decreed by the court in a hearing provided for in a stipulation entered into by the complainant in the chancery suit and the defendants in said suit. Nor can the surety complain of this method of fixing the amount of damages, as the filing of suggestions of damages would have resulted in their being settled by the court after hearing evidence in precisely the same manner. It may be said too, that while the evidence in this case does not show that suggestions were filed, that a presumption of regularity of proceedings prevails when nothing appears to the contrary. We think that the evidence sustains the allegations of the declaration, and that the finding of the court is correct both in fact and in law. Judgment affirmed.