Kimm v. Steketee

Marston, C. J. Where a court of competent jurisdiction allows an injunction'upon condition that complainants execute a bond to defendants, conditioned to pay any damages they might sustain by reason thereof, and the bill is subsequently dismissed for want of jurisdiction, is the bond so given absolutely void % Such is the question presented in this case, and we must answer that in our opinion the bond is valid. It is optional with the complainants to give the bond or not. By giving it they put the law in motion and enjoin the defendants from farther prosecuting their business, thus necessarily causing them to suffer damage. The fact that complainants did not state such a case by their bill as would authorize the court to give them the relief prayed for, should not deprive defendants of their right to protection. Even a temporary injunction may in some cases afford complainants all the redress they seek, and if they can obtain such upon filing a bond to pay the damages, and afterwards escape responsibility upon the plea here urged, then the worse the case stated-in their bill-the safer they are. By being careful and stating a case not within the jurisdiction of the court, they escape liability, while had they gone farther and set [529] forth a good cause and yet for some reason failed, they would become liable. We cannot assent to this reasoning. There ■can be no really good reason, not purely technical, for such a distinction,- and the authorities cited by counsel for plaintiffs in. error sustain the right to recover upon the bond and ■should, we think, be followed as more in accord with right and justice. The judgment must be reversed with costs and a new trial •ordered. The other Justices concurred.