Alder v. City of Florence

Citation194 Kan. 104,397 P.2d 375
Decision Date12 December 1964
Docket NumberNo. 43861,43861
PartiesMary A. ALDER, John J. Alder, Harry H. Alder (Plaintiffs) and S. C. Ludwig (Surety), Appellants, v. The CITY OF FLORENCE, Kansas, Appellee.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. In an injunction action three plaintiffs procured a restraining order and temporary injunction against a city in connection with its flood control project. By the terms of the injunction bond one plaintiff and her surety undertook to pay all costs and damages not exceeding the sum of $8,000 incurred by the city in the event it should ultimately be determined that the temporary injunction was wrongfully granted. Thereafter the trial court upon hearing determined the restraining order and temporary injunction to have been wrongfully granted. Subsequent thereto the city filed a motion in the original action to assess the costs and damages under the injunction bond. Pursuant to a hearing thereon at which the city introduced evidence as to its expenses, including attorneys' fees, in connection with its defense to the injunction action, the trial court rendered judgment against all three plaintiffs and the surety in the total sum of $1,500, consisting of attorneys' fees in the sum of $500 and damages sustained by and to the Utilities Service Company, not a party to the action, and not enjoined, in the sum of $1,000. On appeal by the plaintiffs and the surety it is held for reasons more specifically set forth in the opinion: (a) The allowance of attorneys' fees in the sum of $500 against the principal and her surety on the bond was proper; (b) the judgment against the two plaintiffs who were not named as principals in the bond and did not sign the bond was erroneous; and (c) the judgment in the sum of $1,000 regarding the city's claim on behalf of the Utilities Service Company was erroneous.

2. An injunction bond given pursuant to the provisions of G.S.1949, 60-1110 is intended to cover all damages the party enjoined may sustain by reason of the wrongful procurement of the injunction order, except such as are the result of malice and want of probable cause.

3. The damages recoverable upon an injunction bond are those sustained between the date the restraining order is issued and the date the restraining order and temporary injunction are finally dissolved. Damages accruing after the dissolution of the restraining order or temporary injunction are not recoverable.

4. Generally all defendants who have been enjoined by an order wrongfully obtained in an injunction action, and have obeyed the injunction, and who in consequence of the allowance of the injunction and their obedience thereto, have suffered loss, can claim and recover damages on a bond given for their protection. On the other hand, one not a party to the suit, or who is not a necessary or proper party, is not entitled to damages. Only persons, who are fairly within the covenant of an injunction bond, are entitled to recover thereon.

John J. Alder, Kansas City, argued the cause, and Dean C. Batt, Marion, was with him on the brief, for appellants.

Spencer L. Depew, Wichita, and D. M. Ward, Peabody, argued the cause, and Lawrence Weigand, Lawrence E. Curfman, Byron Brainerd, Charles W. Harris, Orval J. Kaufman, J. Ruse McCarthy, Donald A. Bell, J. L. Weigand, Jr., Paul M. Buchanan and Charles R. Moberly, Wichita, were with them on the brief, for appellee.

SCHROEDER, Justice:

This is an injunction action wherein appeal has been duly perfected from an order of the trial court in ancillary proceedings designed to determine damages embraced within an injunction bond because the plaintiffs below wrongfully obtained the issuance of a restraining order against the city of Florence, Kansas.

The primary thrust of this appeal is to determine the nature of proceedings on an injunction bond.

On the 30th day of January, 1963, Mary A. Alder, John J. Alder and Harry H. Alder (plaintiffs-appellants) filed a petition in the district court of Marion County, Kansas, stating in substance that the city of Florence (defendant-appellee), a second class municipal corporation, through its governing body, attempted to create a flood control project pursuant to the provisions of G.S.1949, 12-635 et seq. by the construction of a dike around the city adjacent to the Cottonwood River, the result of which would damage the plaintiffs, owners of 185 acres of land adjoining the east side of the Cottonwood River. The petition further alleged that in the event the dike, as proposed and planned, is constructed, the land of the plaintiffs would be severely injured and damaged from water overflowing from the Cottonwood River; that G.S.1949, 12-639 requires that the governing body shall appoint appraisers who shall 'assess all damage to any and all property that will be injured or damaged by reason of said improvement;' that the governing body of the city appointed appraisers as directed by the statute; that said appraisers have assessed damages to property which lies within the proposed dike ring; but that said appraisers have not assessed damages which would be incurred by the owners of property lying outside the said proposed dike ring; that the plaintiffs' land has not been appraised nor have damages which might result to their land by virtue of the proposed dike project been assessed; that plaintiffs have not been given an opportunity to object to the appraisers' report, nor have they been given notice, all as required by G.S.1949, 12-640.

The petition further alleged that the city was about to dig up and relocate utilities, close and tear up streets and commence other phases of the proposed project; that the city was about to close the Fifth Street bridge which lies at the east edge of Florence and crosses the Cottonwood River, and was also about to tear up that part of Fifth Street which leads onto the bridge from the west, all of which would remove the usual and direct entry of plaintiffs and other parties from their land to the city. It is alleged these acts would be wholly illegal and would work great and irreparable damage to the plaintiffs, and that the plaintiffs have no adequate remedy at law. Whereupon the plaintiffs prayed for judgment against the defendant enjoining and restraining it and its governing body from doing the aforesaid acts until such time as the city complies with the provisions of 12-639, supra. The plaintiffs further alleged that unless the city and its governing body was forthwith and without notice enjoined and restrained, the plaintiffs would suffer irreparable damage and injury. Whereupon they prayed that a restraining order against the city be granted forthwith.

Pursuant to the allegations of the petition the district court on the 4th day of February, 1963, without notice to the city, issued a restraining order during the pendency of the action, which in material part reads:

'* * * the defendant, its governing body, its agents, employees and servants be restrained and enjoined from closing the Fifth Street Bridge lying at the east edge of Florence, Kansas, and from digging up and relocating utilities, closing and tearing up streets and in any other way from proceeding with the construction of the proposed dike project in the city of Florence, Kansas, said order to become effective at such time as plaintiffs file a good and sufficient surety bond in the sum of $8,000.00.'

Pursuant thereto a bond dated the 5th day of February, 1963, (and apparently filed with the district court on the 8th day of February, 1963) was executed by Mary A. Alder as principal and S. C. Ludwig (appellant) as surety in the penal sum of $8,000, wherein they bound themselves unto 'the city of Florence, Kansas.' The condition of the bond was such that the city of Florence be restrained and enjoined from doing the acts alleged in the petition until the injunction petition filed in the district court could be heard. If the plaintiffs in the action prevailed in the injunction suit, then the obligation became null and void; otherwise to be and remain in full force and effect.

The city, without waiving its objection that the petition failed to state facts sufficient to constitute a cause of action, answered on the 20th day of February, 1963.

On the 25th day of March, 1963, the trial court heard the matter on the issues joined by the injunction petition and the answer. At the conclusion of the hearing it sustained the city's demurrer to the plaintiffs' evidence, and 'the restraining order, together with the injunction, was dissolved.' At the hearing it was determined the city of Florence was proceeding with its flood control project under the provisions of G.S.1961 Supp., 19-3307, rather than the sections of the statute set forth in the plaintiffs' petition, and that the plaintiffs had an adequate remedy at law. (At this point, insofar as the record discloses, the appellants concede the restraining order was wrongfully obtained.)

Thereupon the city filed a motion for the court to fix the costs and damages payable 'from plaintiff and surety to defendant arising upon the bond' resulting from the failure of the plaintiffs to prevail in their injunction action. The amounts claimed by the city in the motion were as follows:

"D. M. Ward, Attorney for Defendant;

costs, fees and expenses ...................................... $ 500.00

"Lawrence Curfman, Attorney for Defendant;

costs, fees and expenses ...................................... $ 500.00

"Reiss and Goodness, Engineers for Florence; services and

expenses ...................................................... $ 180.64

"Utilities Service Company, damages for inability to work under

contract with defendant, inability to use equipment and wages

of superintendent during shutdown ............................. $4,932.90 "

Pursuant to the foregoing motion the trial court proceeded to hear the matter by taking evidence. Counsel for the appellants (including S. C. Ludwig,...

To continue reading

Request your trial
3 cases
  • Idbeis v. Wichita Surgical Specialists
    • United States
    • Kansas Supreme Court
    • December 21, 2007
    ...P.2d 1276 (party can only recover damages that are a "direct, natural and proximate result of the injunction"); Alder v. City of Florence, 194 Kan. 104, 110, 397 P.2d 375 (1964) (where restraining order or temporary injunction was wrongfully issued, all expenses which are incurred by defend......
  • State ex rel. Schmidt v. Nye
    • United States
    • Kansas Court of Appeals
    • March 29, 2019
    ...for the wrongful procurement of a temporary injunction was permitted to proceed, even in the absence of a bond. Alder v. City of Florence , 194 Kan. 104, 110, 397 P.2d 375 (1964) ("no action for the wrongful procurement of a restraining order and/or temporary injunction [other than one upon......
  • DeWerff v. Schartz
    • United States
    • Kansas Court of Appeals
    • March 17, 1988
    ...for the wrongful procurement of a restraining order (other than one upon a bond) without a showing of malice. Alder v. City of Florence, 194 Kan. 104, 110, 397 P.2d 375 (1964); Jacobs v. Greening, 109 Kan. 674, 676, 202 P. 72 (1921). To establish malice, it must be shown that the restrainin......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT