Marengo County v. Matkin

TYSON, J. We agree with counsel for appellants that Purvis has a right of action upon the bond if on the facts averred he has shown that he has suffered any recoverable damages. It is true he is not named as an obligee in it, neither was he a party to the proceeding in which the writ of in [577] junction was issued, but the bond is conditioned “To pay or to cause to be paid all damages and costs which any person may sustain by the suing out of said injunction if the same is dissolved.” This obligation is broad enough to confer upon him a right of action for all damages resulting to him from the direct effects of the injunction. — § 788 of the Code; Smith v. Mutual Loan & Mort. Co., 102 Ala. 282; Jackson v. Millspaugh, 100 Ala. 285; Sutherland on Damages, § 526. Not being named as an obligee, good pleading would require that he should allege such a state of facts as to show that he was damaged by reason of the issuance of the injunction. An allegation of a breach of the condition of the bond, coupled with the averment of the fact that the injunction was dissolved, without more, will not suffice to sho w that he is entitled to- recover nominal damages, even, as would perhaps be the case if he was one of the payees in the bond. — Rosser v. Timberlake, 78 Ala. 162. The facts alleged show that the writ of injunction restrained Marengo* county and certain of its officers and the members of the firm of Dobson & Hand from constructing a court house upon a certain lot, under a contract between Dobson and the county, and prevented the negotiation of county warrants, etc. It is not shown upon what grounds the bill sought to prevent by injunctive relief the performance or execution of this contract. Whether on account of its supposed invalidity, or on account of objections to the personality of Dobson & Hand, or some other ground is not alleged. It affirmatively appears, however, that, at the time the bill was filed and the writ awarded, Purvis was actually constructing the house and had already done a large amount of work on it. Prior to this time, he, it is alleged, had acquired all of Dobson’s rights under the contract by a s transfer of it and had become entitled to all the emoluments arising from it and was responsible to the county for the proper construction of the house. On these facts, Purvis was not the agent or servant of either party to the writ, nor did he acquire his right under the contract to construct the house pendente lite. Nor was he a privy to either of [578] the parties enjoined, in such sense as that the order for the injunction hound him. He was not, therefore, bound by the writ. — 2 High on Inj. §§ 1435, 1440; Bate v. Gellett, 30 Fed. Rep. 685, and cases there cited; 24 Am. & Eng. Ency. Law, (2nd ed.) pp. 746, 749; Shelby v. Burtis, 18 Tex. 644; Buhlman v. Humphrey, 53 N. W. (Ia.) Rep. 318; New comer v. Tucker, 89 Iowa 586; Boyd v. State, 26 N. W. (Neb.) Rep. 925; State v. Miller, 54 Kan. 244; Batterman v. Finn, 32 Howard Prac. 501; People v. Randall, 73 N. Y. 423; Dunham v. Seiberling, 39 N. E. (Inda.) Rep. 1044. In the last case cited, Seiberling- had obtained an injunction against the owner of a piece of land and his lessee and one Fox, an employe of the plaintiff Dunham, to restrain them from drilling a gas well on the land. Dunham, with whom the lessee had a contract to drill the well at the price of fl,300.00, was not a party to the proceeding for the injunction; therefore, not a party to the writ. Prior to the issuance of the writ, he had moved his machinery upon the land and employed a number of skilled persons and was engaged in the work of drilling the well. At the date of the issuance he had sunk the well to the depth of 360 feet and could have finished the work in about 16 days more, but quit work on account of the writ. Upon a dissolution of the injunction he brought •this action on the bond. It was held that he was not entitled to maintain it. The court said: “The appellant ■was not forbidden to' drill. His right to1 enter and drill was acquired prior to the granting of the injunction. If he acted in pursuance of his right thus acquired, and of his own accord, it could not be said that he-was acting for the defendants and in violation of the order. The appellant was not enjoined, and he had a right to proceed until the order of the court forbid him. * * * * Had he pursued this course, Seiberling, in order to have prevented the drilling of the gas well, would have been compelled to proceed against the appellant, and have given an undertaking to indemnify him. There may be cases where one’s servant or agent is enjoined from prosecuting the business of the employer in which the employer may maintain an action on the undertaking, but no such case is made by the complaint.” [579] Here the owner, Marengo county, and the former contractor were enjoined, but Purvis, who was the owner of the contract at the date of the filing of the bill, was not. He was entirely at liberty to continue the construction of the house. The complainants in the injunction suit had not in any manner restrained or prohibited him from carrying out his obligations under the contract. If he abandoned the construction of the building, pending the injunction, as he alleged he did, it was his voluntary act. The decretal order granting writ of injunction was res inter alios acta as to him. To hold otherwise would bind him by a judgment or decree to which he was not a party or privy. He must be held to a knowledge of his rights and, if he forbore the exercise of them, the defendants are in no wise responsible for it. It is not perceivable how the damages occasioned by his voluntary act can be held to be the direct effects of the injunction. Indeed, in a legal sense they cannot be. Had he gone forward with the performance of his part of the contract, as he had the right to do, and been delayed or defeated in the collection of .the contract price for his work from the county by reason of the injunction, that would present a very different question from the one here under consideration. Affirmed. McClellan, C. J., Simpson and Anderson, JJ., concurring.