Beech v. United States Fidelity and Guaranty Co., 6055

• Decision Date: 09 March 1934
• Docket Number: 6055
• Citation: 30 P.2d 1079,54 Idaho 255
• Parties: TOM BEECH, Respondent, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

30 P.2d 1079

54 Idaho 255

TOM BEECH, Respondent, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation, Appellant

No. 6055

Supreme Court of Idaho

March 9, 1934

INJUNCTION-TEMPORARY RESTRAINING ORDER-EFFECT-BOND AS CONDITION OF ISSUANCE-MOTION TO DISSOLVE, DENIAL-RES JUDICATA-LIABILITY OF SURETY.

1. Temporary restraining order is "injunction" within statute requiring undertaking (I. C. A., sec. 6-405).

2. Temporary restraining order merely preserves status quo until determination of propriety of injunction pendente lite (I. C A., sec. 6-405).

3. On motion to dissolve temporary restraining order, court considered relief sought, property or rights requiring protection, and parties' interests.

4. On motion to dissolve temporary restraining order, court merely determines existence or nonexistence of sufficient or prima facie showing, justifying such order.

5. On motion to dissolve temporary restraining order, court does not make final fact findings or grant relief which is proper only on final judgment.

6. There being no appeal from order denying motion to dissolve temporary restraining order, finding that showing was sufficient to sustain such order, but not plaintiff's right thereto on merits, is res judicata.

7. On appeal from order denying motion to dissolve temporary restraining order, court considers merely sufficiency of showing to sustain order.

8. Statute obligating surety on bond for temporary restraining order, if court "finally decide that plaintiff was not entitled thereto" means final decision on merits (I. C A., sec. 6-405).

9. Dismissal of suit wherein temporary restraining order has issued constitutes final adjudication that plaintiff was not entitled thereto, making surety liable (I. C. A., sec 6-405).

10. Party whom temporary restraining order prevented from selling sheep could recover from surety full amount of bond given for such order, where value of sheep dying during existence of restraining order exceeded amount of bond (I. C A., sec. 6-405).

APPEAL from the District Court of the Eleventh Judicial District, for Minidoka County. Hon. Adam B. Barclay, Judge.

Action on surety bond. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed, with costs awarded to respondent. Petition for rehearing denied.

Joseph T. Pence and J. J. McCue, for Appellant.

The evidence is insufficient to sustain the decision, and/or judgment; the evidence is insufficient to show the respondent suffered any loss because of the restraining order. The burden is on the plaintiff to prove all the facts necessary to make his case. (Jaycox v. Varnum, 39 Idaho 78, 226 P. 285; 22 C. J. 68, 81; Osage Oil & Ref. Co. v. Chandler, 287 F. 848.)

Appellant, surety, is not liable on its bond, for the reason that the court in the Bowman case, never determined he was not entitled to the restraining order, the basis upon which this action is brought. (I. C. A. 1932, sec. 6-405; 32 C. J. 28, 29; Houghton v. Cortelyou, 208 U.S. 149, 28 S.Ct. 234, 52 L.Ed. 432.)

Walters, Parry & Thoman and H. V. Creason, for Respondent.

The final judgment in the Bowman case dismissing the action was a final decision that Bowman was not entitled to the restraining order, so far as concerns recovery on the bond. ( Davidson Grocery Co. v. United States Fidelity & Guaranty Co., 52 Idaho 795, 21 P.2d 75.)

A temporary restraining order is an injunction from any point of view. (MacWatters v. Stockslager, 29 Idaho 803, 162 P. 671; I. C. A., sec. 6-405.)

Appellant is liable not only for the damages caused by the restraining order, but it is liable for all the damages caused by the restraining order. (Houghton v. Cortelyou, 208 U.S. 149, 28 S.Ct. 234, 52 L.Ed. 432.)

WERNETTE, J. Budge, C. J., and Givens and Holden, JJ., concur. MORGAN, J., Dissenting.

OPINION

WERNETTE, J.

This action was instituted to recover on a surety bond, given upon the issuance of a temporary restraining order in another action.

December 27, 1922, one R. A. Bowman, commenced an action against respondent, Tom Beech, and one L. R. Adams. The action arose out of a disagreement over a contract for the purchase and sale of a number of sheep, then in the possession of respondent and Adams. At the time of filing the action Bowman prayed that respondent and Adams be enjoined from loading and shipping the said sheep. A temporary restraining order was issued, ex parte, and an order to show cause why the defendants should not be enjoined pendente lite and the injunction later made permanent. The bond in question in the instant case, for $ 1,000 was given pursuant to the temporary restraining order.

December 28, 1922, notice was given respondent that a motion would be made that the court make an order to increase the bond and upon failure to so increase it, the restraining order be dissolved. On January 9, 1923, the order to show cause and the motion to dissolve the restraining order were heard by the court. The court took the matter under advisement and on January 12, 1923, made an order denying the motion to dissolve the restraining order and at the same time granted a temporary injunction upon the furnishing of a bond in the sum of $ 10,000, which bond was furnished by another surety, and a temporary injunction issued.

Some time in January, 1923, while the action commenced by Bowman was still pending, the sheep were sold. Not until July 6, 1924, was the action above referred to tried on its merits, at which time Bowman recovered judgment for damages in the sum of $ 26,004. The defendants therein appealed to this court (Bowman v. Adams, 45 Idaho 217, 261 P. 679). The judgment was reversed and the cause remanded for a new trial. At the hearing of the new trial the plaintiff, Bowman, did not appear and the action was dismissed.

This action was commenced by respondent against appellant to recover the damages claimed to have been suffered by the respondent by reason of the expenses incurred in feeding the sheep during the period that the restraining order was in force, for the loss of sheep by death at the rate of twenty-four head per day and for attorneys' fees incurred on motion to dissolve the temporary restraining order. The case was heard before the court without a jury and judgment was rendered for plaintiff and respondent, from which this appeal is prosecuted.

The surety bond sued on obligated the surety under the regular statutory obligation as provided in C. S., sec. 6772, now sec. 6-405, I. C. A. The statute, among other things, providing as follows:

"On granting an injunction, the court or judge must require, . . . . a written undertaking on the part of the plaintiff, with sufficient sureties to the effect that the plaintiff will pay to the party enjoined such costs, damages, and reasonable counsel fees, not exceeding an amount to be specified, as such party may incur or sustain by reason of the injunction, if the court finally decide that the plaintiff was not entitled thereto. . . . "

This court has heretofore specifically held that a temporary restraining order is, in effect, an injunction. ( MacWatters v. Stockslager, 29 Idaho 803, 162 P. 671.) That a temporary restraining order is effective only until a hearing is had on the order to show cause, and if upon such hearing an injunction pendente lite is granted, the latter supersedes the temporary restraining order, which has then served its purpose and becomes functus officio; that it is intended only as a restraint on the defendant until the propriety of granting an injunction pendente lite can be determined; and it goes no further than to preserve the status quo until that determination. (Rowland v. Kellogg Power & Water Co., 40 Idaho 216, 233 P. 869.)

While there are a number of assignments of error, the determination of two main questions are decisive. First, did respondent, in this action, prove that Bowman, the plaintiff in the action in which the bond was given, was not entitled to the restraining order issued? Second, did the respondent prove legal damages sufficient to justify the judgment? In other words, if we find that respondent has proven that Bowman was not entitled to the restraining order at the time it was granted, and has properly proven that he has suffered the damages awarded in the judgment, then the judgment in this court must be affirmed. In order to avoid ambiguity and confusion we shall designate the case in which the temporary restraining order was issued and bond or undertaking furnished, as the Bowman case, and the case now before us, in which suit was instituted on the bond, as the instant case.

In the Bowman case the defendant made a motion to dissolve the temporary restraining order, which motion came on for hearing at the same time as the order to show cause why a temporary injunction pendente lite should not be issued. The court denied the motion to dissolve the temporary restraining order and also issued the temporary injunction on the order to show cause. The appellant now takes the position that prior to the time that the temporary restraining order became functus officio, by operation of law, the court had denied the motion to dissolve the same, so that the only court order concerning it while it was alive was a determination that Bowman was entitled to the same and that it was rightfully issued; that such determination was upon a hearing for that express purpose; that on January 12, 1923 the temporary restraining order became functus officio as the appeal taken by the defendant from the order denying the motion to dissolve the same was abandoned; concluding therefrom that the only determination that the court ever made, as to whether the temporary restraining order was rightfully or wrongfully issued, was to the effect...