Buggeln v. Cameron

• Decision Date: 25 March 1907
• Docket Number: Civil 989
• Parties: MARTIN BUGGELN et al., Plaintiffs and Appellants, v. MILES J. CAMERON et al., Defendants and Appellees
• Court: Arizona Supreme Court

90 P. 324

11 Ariz. 200

MARTIN BUGGELN et al., Plaintiffs and Appellants, v. MILES J. CAMERON et al., Defendants and Appellees

Civil No. 989

Supreme Court of Arizona

March 25, 1907

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Coconino. R. E. Sloan Judge. Reversed and remanded.

The facts are stated in the opinion.

T. J Norton, Paul Burks, and U. T. Clotfelter, for Appellants.

For the first time there is presented to the supreme court of Arizona this important question of practice: Can an action for damages occasioned by the issuance and dissolution of an injunction be maintained against the principal and sureties in an injunction bond unless such damages have been adjudged against them in the injunction suit? The complaint did not allege either that Buggeln had failed to pay any sum of money adjudged against him, or that any sum of money had been so adjudged, upon the dissolution of the injunction; hence the demurrers of appellants should have been sustained. See Rev Stats. 1901, par. 2751. The construction placed upon the bond by the trial court, wherein he overruled the demurrers on the ground that the statute had been adopted from Texas with a construction to the contrary, laid down in Texas etc. Ry Co. v. White, 57 Tex. 129, Avery v. Stewart, 60 Tex. 154, and Sharp v. Schmidt, 62 Tex. 263, was not well founded; as the Arizona courts are not bound by the Texas construction, whatever it was (appellant contends that these cases in fact practically uphold his contentions), for the rule that a statute is adopted with the construction given it is not an absolute one. Whitney v. Fox, 166 U.S. 637, 17 S.Ct. 713, 41 L.Ed. 1145; Oleson v. Wilson, 20 Mont. 544, 63 Am. St. Rep. 639, 52 P. 372; Morgan v. State, 51 Neb. 672, 71 N.W. 788; Coad v. Cowhick, 9 Wyo. 316, 87 Am. St. Rep. 953, 63 P. 584; State v. Mortensen, 26 Utah 312, 73 P. 562, 633; State v. Campbell, 73 Kan. 688, 85 P. 784 (789), 9 L.R.A., N.S., 533.

An exhaustive examination of the injunction bond statutes of the various states and the decisions construing them warrants the 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, 37 Ala. 95; Offterdinger v. Ford, 92 Va. 636, 24 S.E. 246 (247); Halsey v. Murray, 112 Ala. 185, 20 So. 575 (582); Bein v. Heath, 12 How. 168, 13 L.Ed. 939. To the same effect, and on construing obligations to pay damages or sums of money "awarded" or "recovered," see Blakeny v. Ferguson, 18 Ark. 347; Sterling City etc. Co. v. Cock, 2 Colo. 24; Sledge v. Lee, 19 Ga. 411; Russell v. Rogers, 56 Ill. 176; Ashby v. Chambers, 3 Dana (Ky.), 437; Ferguson v. Tipton, 1 B. Mon. (Ky.) 28; Parham v. Cobb, 7 La. Ann. 157; Holcomb v. Foxworth, 34 Miss. 265; Kennedy v. Hammond, 16 Mo. 341; Corder v. Martin, 17 Mo. 41; Nolan v. Johns, 27 Mo.App. 502; McLuckie v. Williams, 68 Md. 262, 12 A. 1; Roberts v. Dust, 4 Ohio St. 503.

The supreme court of the United States has construed language of an injunction bond in substance identical with that here sued upon to mean that at the time of the dissolution of the injunction damages must have been adjudged or awarded, and the obligors must have refused to pay them, else there can be no recovery in an action on a bond. See Bein v. Heath, 12 How. 168, 13 L.Ed. 939. This construction is binding on the courts of Arizona, for they are bound by the construction of words, phrases or statutes given them by the supreme court of the United States. Greer v. Richards, 3 Ariz. 227, 32 P. 266; Lindeberg v. Howard, 146 F. 467, 77 C.C.A. 23. Under the decision in Russell v. Farley, 15 Otto, 433, 105 U.S. 433, 26 L.Ed. 1060, the federal courts have ever since determined the amount defendants in an injunction suit were entitled to recover of the obligors named in the injunction bond in the suit in which the injunction was issued and at the time of its dissolution. Deakin v. Stanton, 3 F. 435; Lea v. Deakin, 13 F. 514, 11 Biss. 40; Coosaw Min. Co. v. Farmers' Min. Co., 51 F. 107; Lehman v. McQuown, 31 F. 138; Coosaw Min. Co. v. Carolina Min. Co., 75 F. 860 (867); Tyler Min. Co. v. Last Chance Min. Co., 90 F. 15 (22), 32 C.C.A. 498; Kirker v. Owings, 98 F. 499 (508-510), 39 C.C.A. 132; West v. East Coast Cedar Co., 110 F. 727; West v. East Coast Cedar Co., 113 F. 742, 51 C.C.A. 416; Baer v. Fidelity & D. Co. of Md., 130 F. 95, 64 C.C.A. 428.

Henry J. Stevens, and E. M. Doe, for Appellees.

Section 2131, Revised Statutes of 1901, is without question taken from article 2881, Revised Statutes of Texas of 1879, they being practically identical in language. The Texas courts have held that the defendant in an injunction suit could rightfully prosecute a separate action to have the question of damages and their amount adjudicated. "His right, independent of the statute to bring an action on the bond, is secured in general principles of law; and though a special provision is made for the assertion of his claims under the bond, yet that does not operate as a preclusion of his general right, the statute containing no terms of prohibition, either expressly or by implication." Hammonds v. Belcher, 10 Tex. 271; Carlin v. Hudson, 12 Tex. 203, 62 Am. Dec. 521. This rule, definitely and clearly established by the decision, was subsequently, and after the adoption of the statute which Arizona borrowed, announced and approved in the cases of Avery & Sons v. Stewart, 60 Tex. 154, and Texas & N.O.R.R. Co. v. White, 57 Tex. 130. Upon the general proposition that this court shall be bound by the decisions of the Texas court, if it be true, as we contend, that this question had been decided by the latter court prior to the adoption of the statute in question, we call attention to the following: Sutherland on Statutory Construction, 2d ed., sec. 404; Henrietta Mining & Milling Co. v. Gardner, 173 U.S. 123-130, 19 S.Ct. 327, 43 L.Ed. 637; James v. Appel, 192 U.S. 134, 24 S.Ct. 222, 48 L.Ed. 377; Anderson v. Territory, 9 Ariz. 50, 76 P. 636. But we are not compelled to rely upon the authority of the Texas cases, for the rule for which we contend has been adopted by the courts of other states and has been approved also by the supreme court of the United States. Meyers v. Block, 120 U.S. 206, 7 S.Ct. 525, 30 L.Ed. 642; Elliott v. Missouri K. & T. Ry., 77 Mo.App. 652; Hibbard v. McKindley, 28 Ill. 242; Brown v. Gorton, 31 Ill. 417; Edwards v. Edwards, 31 Ill. 474; Block v. Myers, 35 La. Ann. 220; Aiken v. Leathers, 40 La. Ann. 23, 3 So. 358; Fountain v. West, 68 Iowa 380, 27 N.W. 264; Rankin v. Estes, 13 Bush (76 Ky.), 429; Logsden v. Willis, 14 Bush (77 Ky.), 183; Claytor v. Anthony, 15 Gratt. (Va.) 519; Underhill v. Spencer, 25 Kan. 71 (opinion by Judge Brewer); Union Wharf Co. v. Mussey, 48 Me. 307; 2 High on Injunctions, secs. 1657, 1658, 1670.

OPINION

CAMPBELL, J.

-- Appellant Martin Buggeln was plaintiff in an action seeking to restrain appellees herein from collecting toll upon the Bright Angel toll road. An injunction was issued, and in pursuance of an order of the court a bond upon the injunction was given by the appellant Buggeln, as principal, with the appellants T. A. Riordan and M. J. Riordan, as sureties. Upon the final hearing of the case the injunction was dissolved and the petition dismissed. Thereafter the appellees herein brought this action upon the injunction bond to recover damages claimed to have been sustained by them by reason of the injunction. The complaint contains no allegation that Buggeln has failed to abide the decision in the injunction suit, or that any sum of money was adjudged against him in that or any other proceeding. Appellants entered a general demurrer to the complaint, which was overruled. A trial of the action resulted in a judgment for the appellees for $2,000, whereupon the case was brought here upon appeal.

Appellants' assignment of error that the court erred in overruling their demurrer to the complaint presents the principal question in the case. The first contention of appellants is that such damages as result from the issuance of an injunction should under the practice, principles, and procedure of equity, be assessed and awarded in the injunction suit, and that an independent action will not lie upon an injunction bond to recover such damages. This broad contention is not sustained by authority. In the case of Bein v. Heath, 12 How. (U.S.) 168, 13 L.Ed. 939, it was held that, independent of the statute, the court cannot, when it dissolves an injunction, give judgment at the same time against the obligors in the injunction bond; that it merely orders a dissolution, leaving the obligee to proceed at law against the sureties in the bond, if he sustains damage from the delay occasioned by the injunction. The holding in this case was criticized and virtually disapproved in Russell v. Farley, 105 U.S. 433, 26 L.Ed. 1060, in which it and other cases were reviewed, and the court said: "But upon a careful examination we are not satisfied that they furnish any good authority for disaffirming the power of the court having possession of the case, in the absence of any statute to the contrary, to have the damages assessed under its own direction. This is the ordinary course in the court of chancery in England, by whose practice the courts of the United States are governed, and seems to be in accordance with sound principle. The imposition of terms and conditions upon the parties before the court is an incident to its jurisdiction over the case; and, having possession of the principal case, it is fitting that it should have power to...