Brownfield v. Brownfield
| Decision Date | 31 January 1871 |
| Parties | WILLIAM BROWNFIELD et al.v.THOMAS BROWNFIELD. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Champaign county; the Hon. A. J. GALLAGHER, Judge, presiding.
Mr. C. B. SMITH, for the plaintiffs in error.
Mr. WM. B. WEBBER, for the defendant in error.
Suit was brought on an injunction bond, with a penalty of $1,000, which contained this condition:
“Now, therefore, the condition of the above obligation is such, that if the above named complainants, their executors, administrators, or any of them, shall, and do well pay, or cause to be paid, to the said Thomas Brownfield, his executors, administrators or assigns, all such costs and damages as shall be awarded against the complainants, in case this injunction be dissolved, then the above obligation to be void, otherwise to remain in full force and effect.”
Besides the bond and record of the proceedings, the proof submitted, was, that defendant in error had paid attorneys' fees in defending the suit enjoined, to the amount of $2,700. The injunction was dissolved, and costs were adjudged against the complainants, but no damages. It was admitted that the costs had been paid.
The court below rendered judgment for the penalty of the bond.
The injunction, in this case, was not granted to stay a judgment at law, but to restrain the obligee from “claiming and using certain personal and real estate.” As the injunction was not issued under the statute, there is no prescribed rule in regard to the amount or condition of the bond. This is left to the discretion of the judge, or master, who may grant the writ. The condition might have been such as to include necessary counsel fees which were paid in defending the injunction.
The important question is, is there a breach of the condition until there is an award of damages? Can the damages be awarded in a suit on the bond, when there was no award of damages on the dissolution? Must not the breach, in fact, exist before the institution of the suit?
The language of the condition is, that the obligors “pay all such damages as shall be awarded against the complainants, in case the injunction shall be dissolved.” Upon suggestions in writing at the time of the dissolution, the court would have assessed damages. The statute provides, that in all cases where an injunction is dissolved, the court, after such dissolution, and before final disposition of the case, upon suggestion of the party claiming damages, shall hear evidence and assess such damages to the party damnified as the case may require, and may award execution therefor. (Sess. Laws 1861, 133.)
It was the duty of the party...
To continue reading
Request your trial
-
Buggeln v. Cameron
...assertion that our construction of the Arizona statute is the only one supported alike by principle, reason and authority. Brownfield v. Brownfield, 58 Ill. 152; Tarpey v. Shillenberger, 10 Cal. 391; Hathaway v. Davis, 33 Cal. 161; Davis v. Gully, 2 Dev. & B. (19 N.C.) 360; Dunn v. Davis, 3......
-
Hogue v. Edwards
...entered extending the time, cited Evans v. Fisher, 5 Gilm. 569; Hance v. Miller, 21 Ill. 639; Goodrich v. Cook, 81 Ill. 41; Brownfield v. Brownfield, 58 Ill. 152; Stein v. Kendall, 1 Bradwell, 101. A bank check is negotiable, and the addition of the words, “with exchange,” does not impair i......
-
Rees v. Peltzer
...and cited 1 Gross' Stat. 459; Laws 1861, 133; Roberts v. Fahs, 36 Ill. 268; Russell et al. v. Rogers et al. 56 Ill. 176; Brownfield et al. v. Brownfield, 58 Ill. 152; McWilliams et al. v. Morgan, 70 Ill. 551; Mix v. Vail, et al. Ill. Sup. Ct. Sept. T. 1877; Mix et al. v. Singleton, Ill. Sup......
-
Ry. Passenger & Freight Conductors' Mut. Aid & Ben. Ass'n v. Leonard
...of, even without notice. Without reviewing the authorities on this question, reference may be had to the following: Brownfield v. Brownfield, 58 Ill. 152;Goodrich v. Cook, 81 Ill. 41;Hake v. Strubel, 121 Ill. 321, 12 N. E. 676;Hawes v. People, 129 Ill. 123, 21 N. E. 777;Village of Marseille......