C. H. Albers Commission Co. v. Spencer

• Decision Date: 12 July 1911
• Parties: C. H. ALBERS COMMISSION COMPANY et al., Appellants, v. MARY E. SPENCER, Executrix, et al
• Court: Missouri Supreme Court

139 S.W. 321

236 Mo. 608

C. H. ALBERS COMMISSION COMPANY et al., Appellants, v. MARY E. SPENCER, Executrix, et al

Supreme Court of Missouri, First Division

July 12, 1911

St Louis City Circuit Court. -- Hon. Jesse A. McDonald, Judge.

Reversed and remanded.

Barclay Fauntleroy & Cullen for appellants.

(1) No judgment should be given for damages on a bond for temporary injunction until a final disposition of the case is reached on its merits and a final decree rendered, which had not taken place in this cause when judgment on the bond was entered in favor of some of the obligees, and not all. Railway v. Railroad, 135 Mo. 554; Price v Calumet, 82 Mo.App. 19; Cohn v. Lehmann, 93 Mo. 584; Johnson v. Board, 65 Mo. 47; 1 Beach, Inj., sec. 17; Jones v. Ross, 48 Kan. 474; Musgrave v. Sherwood, 76 N.Y. 194; Tea Co. v. Stewart, 120 N.W. 962; Crawford v. Pearson, 116 N.C. 718; Blythe v. Hinkley, 84 F. 228; Thomas v. Wooldridge, 23 Wall. 288. (2) The petition in this cause seeks other relief in equity in various forms, beyond the injunctive remedy ancillary thereto; and the ruling on the injunctive phase was not deemed final by this court, when it merely affirmed the dissolution of the preliminary restraining order, leaving other issues for decision as developed by the pleadings. The ruling of this court is the "law of the case" on that subject. Bank v. Monarch Co., 68 Mo.App. 603. There must be, in any aspect of the record, some final disposition of, or judgment in, the main case, before any assessment of damages is permissible on the interlocutory injunction bond. Konta v. Exchange, 131 S.W. 380; Lacey v. Davis, 126 Iowa, 675; Tea Co. v. Stewart, 120 N.W. 962; Railway v. Adams, 30 So. 44. (3) The motions for damages do not state essential facts sufficient to constitute a cause of action or grounds for any assessment, because they omit any facts whatever except that some injunction was "wrongful," and a recital of damages. Such a motion is in the nature of a suit or cross-action for damages, and it must recite facts to warrant the order prayed. Eakle v. Smith, 27 Md. 467; 10 Ency. Pl. & Pr. 1128; Railway v. Railway, 135 Mo. 549; Paxon v. Talmage, 87 Mo. 14. This point was specifically raised below, but, if such was not the case, this point would be nevertheless available on appeal, without any such introduction. Lilly v. Menke, 126 Mo. 190; State ex rel. v. Duncan, 130 Mo.App. 311. (4) All the obligees in the injunction bonds were necessary parties to the motions, and as only some thereof were heard on such motions, there could be no valid finding and judgment as to a share only of such parties, leaving the other motions pending below. Ryan v. Riddle, 78 Mo. 521; Hotel v. Flynn, 238 Ill. 636; 10 Ency. Pl. & Pr. 1127; Ohnsorg v. Turner, 33 Mo.App. 486. A motion of this sort is in effect a counter-suit on the bond and governed by like principles. Railroad v. Railroad, 135 Mo. 549. (5) No final judgment for damages on the five injunction bonds could properly be rendered until all the motions for assessment had been heard. In this cause only one of three motions for such assessment had been tried when judgment was rendered. Helmkampf v. Wood, 84 Mo.App. 261; Banknote Co. v. Assn., 79 Mo.App. 612; Adams v. Railroad, 30 So. 44. (6) Two motions by the same party (covering different grounds of claim for damages on the injunction bonds) are not permissible at the same time. The appellants' motion to strike out the first one as supplanted by the last should have been sustained, whereas it was overruled. R. S. 1899, sec. 666; Ward v. Davidson, 89 Mo. 455; Tichnor v. Voorhis, 46 Mo. 110; Basye v. Ambrose, 28 Mo. 39; Boisse v. Laugham, 1 Mo. 572; Nedvidek v. Meyer, 46 Mo. 602; U. S. M. Co. v. Ramlose, 109 S.W. 572; Hackett v. Underwriters, 79 Mo.App. 19; Intern. Co. v. Flynn, 238 Ill. 636. (7) A suspensive appeal from an interlocutory order dissolving a preliminary injunction does not revive the injunction, and here the court refused to make a special order to revive the same; so that, pending the appeal, the preliminary order was no longer in force. State v. Dearing, 180 Mo. 69; Neiser v. Thomas, 46 Mo.App. 47; Teasdale v. Jones, 40 Mo.App. 243; Graham v. Conway, 82 Mo.App. 647. (8) An order granting or denying a temporary injunction order is not a final determination of the controversy. Harrison v. Rush, 15 Mo. 175; Brown v. Assn., 59 N.Y. 242; Paul v. Munger, 47 N.Y. 469; Beaudry v. Felch, 47 Cal. 186; Sanitary Works v. Reduction Company, 94 F. 696. Only recent special statutory permission and authority have allowed an appeal from an interlocutory order dissolving a preliminary injunction. R. S. 1899, sec. 806. (9) Evidence of expenses and other claims accrued after the temporary injunction was dissolved was improperly admitted in evidence against protest and exceptions of appellants. Brown v. Baldwin, 121 Mo.App. 126; Loehner v. Hill, 17 Mo.App. 32. These items are commingled inextricably in the findings of the trial court, so that none may sever what might be allowable from the claims which are unfounded; so that the only cure is a reversal of the findings so made. Slattery v. City, 120 Mo. 184; Hunter v. City, 49 Mo.App. 17; Radtke v. Box Co., 229 Mo. 1. It is the duty of one claiming such damages to sever and submit those items for which recovery is lawful; otherwise his proof fails. State ex rel. v. Taylor, 68 S.E. 379; Railways v. Pardue, 131 S.W. 862 (Tenn.) ); Goransson v. Mfg. Co., 186 Mo. 300. (10) The admission of evidence for the movents touching hearings before the directors of the Exchange, on three different occasions, on applications to those directors for orders to pay over deposit certificates, was erroneous, and wholly irrelevant. (11) The admission of evidence regarding interest on funds in possession of a third party (The National Bank of Commerce) and the allowance of $ 6,288.92 for interest, pending the appeal from the order dissolving the temporary injunction, and after its dissolution, were items not "occasioned by such injunction," and hence not within the scope of such a motion for damages under the statute on that subject. The proceedings before the Board demonstrate that the Board knew full well that it refrained from ordering the deposits paid, not because it was considered that the spirit of the Exchange rules called for that ruling while the suit (irrespective of the injunction feature) was not finally decided. R. S. 1899, sec. 3637; Teasdale v. Jones, 40 Mo.App. 250. (12) The court erred in giving the first declaration of law for defendants because it states incorrectly the measure of damages by including therein damages after dissolution which are not covered by the bonds in suit. Teasdale v. Jones, 40 Mo.App. 250. (13) The second instruction for defendants is erroneous in allowing interest to July 26, 1907, when the preliminary injunction was dissolved March 14, 1904, and any delay in payment thereafter was not due to the restraining order and not within the terms of the bonds given by appellants. The terms of those bonds should not be enlarged by construction beyond their terms, "damages that may be occasioned by such injunction." R. S. 1899, sec. 3637; Teasdale v. Jones, 40 Mo.App. 250; Ovington v. Smith, 78 Ill. 250; Hall v. Williamson, 9 Oh. St. 17.

Judson & Green for respondents.

(1) Since the amendment of our injunction statutes in 1891, an order dissolving a temporary injunction may be appealed from. Laws 1891, p. 70; R. S. 1909, sec. 2028; Comm. Co. v Spencer, 205 Mo. 105; Railway v. Sweet, 110 Mo.App. 100. (2) The practice in this State requires that a motion for the assessment of damages on an injunction bond shall be filed at the term at which the order dissolving the injunction is made, and that, in case of an appeal from the order dissolving the injunction with a supersedeas bond, the actual assessment of the damages on the motion must be deferred until the appeal is finally determined. Moore v. Bank, 58 Mo.App. 469; Fears v. Riley, 147 Mo. 453; Sutliff v. Montgomery, 115 Mo.App. 592; Railway v. Sweet, 110 Mo.App. 100. (3) There is, however, the further rule that where an interlocutory order dissolving a temporary injunction is appealed from, an additional or supplemental motion for the assessment of damages may be filed after the final decision, to cover and include services rendered in the appellate court in sustaining the order of the lower court. This rule arises "ex necessitate rei." Railway v. Sweet, 110 Mo.App. 100. (4) It is wholly immaterial whether appellants' contention, that the judgment of the lower court dissolving the temporary injunction did not dispose of the entire case but still left a cause of action to be tried upon the merits, is sound or unsound, because, under the practice in this State since the amendment of 1891, respondents were entitled to have the damages assessed upon their motions as soon as the appeal from the order dissolving the temporary injunction had been affirmed, without waiting for any final hearing on the merits. There is now a final judgment on the right to a temporary injunction. R. S. 1909, sec. 2524; Padgett v. Smith, 206 Mo. 303; Fears v. Riley, 147 Mo. 453; Railway v. Sweet, 110 Mo.App. 100. If appellants had not taken an appeal from the order dissolving the temporary injunction and there had been a subsequent trial on the merits, and after that an appeal, then this court on the appeal would review the lower court's action in dissolving the injunction; and in such case it might have been said that there was no final judgment, on the right to a temporary injunction, until the appeal from the merits had been heard in the appellate court. Such was the case of Railroad v. Railroad, 135 Mo. 554, and of Baking Powder Co. v. Baking Powder Co., 82 Mo.App. 19, the only...