Bank of Monroe v. Gifford

• Decision Date: 02 March 1887
• Parties: BANK OF MONROE AND ANOTHER v. GIFFORD AND OTHERS.
• Court: Iowa Supreme Court

70 Iowa 580

31 N.W. 881

BANK OF MONROE AND ANOTHER

v.GIFFORD AND OTHERS.

Supreme Court of Iowa.

March 2, 1887.

Appeal from circuit court, Jasper county.

The defendant Gifford brought an action in equity in the district court of Jasper county to cancel a promissory note which he had signed as surety for the Anderson Bros. Mining & Railway Company. The note was made payable to the plaintiff Tunis Schenck, and was by him indorsed to the Bank of Monroe. The ground upon which plaintiff demanded relief was that his signature to the note had been obtained by certain fraudulent representations and concealments, and he alleged that both Schenck and the bank were parties to such fraud. He asked and obtained a temporary injunction restraining the bank from negotiating the note. Soon after the writ of injunction was served upon it, the bank filed its answer denying the allegations of the petition. It also filed a motion, supported by affidavits, for the vacation of the injunction. This motion, together with the pleadings and affidavits, was submitted in vacation to the judge of the district court on whose order the writ had been allowed, and was sustained by him, and an order was entered dissolving the writ. The plaintiffs thereupon instituted a suit on the injunction bond, claiming damages thereon for the wrongful suing out of the writ. It was adjudged in that action, on demurrer to the petition; that an action could not be maintained on the bond before the determination of the suit in which the writ was issued, and that ruling was affirmed by this court. See 65 Iowa, 648, 22 N. W. Rep. 913. During the pendency of those proceedings the note matured, and the bank instituted an action at law for its enforcement. Defendant then dismissed his action in equity, and pleaded the matters alleged in his petition as a defense in the law action. Plaintiff thereupon brought this action on the injunction bond, in which they seek to recover the expense incurred by them for counsel fees in procuring the order vacating the injunction. The condition of the injunction bond was as follows: “The condition of the above obligation is such that whereas, the said Gifford has filed in the office of the clerk of the district court of Jasper county, Iowa, a petition praying that a writ of injunction be issued to restrain the said Schenck and the Bank of Monroe from negotiating, selling, assigning, or indorsing a certain note executed by Ellis Gifford on or about February 14, 1883, for $2,500, said writ to restrain such sale, assignment, or indorsement to any person whomsoever; and whereas, the Hon. J. K. JOHNSON, judge of the district court of Iowa for Jasper county, made an order allowing said writ of injunction; now, therefore, if the said Gifford shall well and truly pay to the aforesaid T. Schenck and Bank of Monroe all damages and costs which they, or either of them, may sustain, or that may be adjudged against said Gifford, as also all judgments that may be recovered against the said petitioner by reason of said injunction, then this obligation to be void; otherwise in full force.” The cause was tried to the court without the intervention of a jury, and judgment was rendered for plaintiff for $105, and defendants appealed.John F. Lacey and Alanson Clark, for appellants.

Winslow & Varnum and J. Kipp & Son, for appellees.

REED, J.

A number of questions arise on the record, and have been argued by counsel. But, in our opinion, the case can be properly disposed of on a consideration of but one of them. Under the issue, plaintiffs were required to establish (1) that the injunction was wrongfully sued out; and (2) that they were damaged by the issuance of the writ. One question argued by counsel is whether the order of the judge vacating the writ has the force and effect of a judgment, or whether the defendant may go back,...