Callaway v. Sparks
| Decision Date | 04 April 1939 |
| Docket Number | Case Number: 28739 |
| Parties | CALLAWAY, Admix, et al. v. SPARKS et al. |
| Court | Oklahoma Supreme Court |
¶0 1. INJUNCTION--Voluntary Dismissal of Restraining Order Effective to Give Restrained Party Cause of Action on Bond.
Where a bond is executed as a condition to the issuance of a temporary restraining order, conditioned upon it being "finally determined that said injunction or restraining order ought not to have been granted," the voluntary dismissal of the restraining order amounts to a determination that the restraining order ought not to have been granted and gives the restrained party a cause of action thereon, in the absence. of any showing as to the circumstances surrounding the dismissal.
2. STIPULATIONS--BINDING EFFECT--Assent by Silence Where Dictated Into Record.
Where, in the trial of a cause the attorney for one of the parties dictates into the record a stipulation and the attorney for the opposite party is present participating in the trial, but is silent and makes no objection to the stipulation, he will be held to have consented to such stipulation.
3. SAME--APPEAL AND ERROR--Binding Effect of Stipulation That Attorney Is Entitled to Reasonable Fee.
A stipulation made in open court that plaintiff's attorney is entitled to a reasonable attorney's fee. when acted upon by the court, is binding and conclusive on the parties during the progress of the trial ,and on appeal, and the defendant cannot successfully defeat such attorney's fee in this court as being unauthorized.
4. INJUNCTION--Measure of Damages in Action on Bond Where Temporary Restraining Order Delays Harvesting and Sale of Matured Hay Crop Causing Depreciation in Value.
Where a temporary restraining order operates to delay the harvesting and sale of a matured hay crop, and pending such delay depreciation occurs in the value of the crop, such loss being occasioned by the restraining order. the difference between the market value of the crop at the time it would have been sold, but for the existence of the restraining order. and the market value when the restraining order expired plus a reasonable time for harvesting, is the measure of damages in an action on a bond conditioned as a statutory bond required by section 718. O. S. 1931 (12 Okla. St. Ann. sec. 1392) for temporary injunctions.
Appeal from District Court, Stephens County; Cham Jones, Judge.
Action by Orin Sparks and others against Minnie L. Callaway, administratrix of estate of A. A. Glaze, and another. Judgment for plaintiffs, and defendants appeal. Affirmed on condition of remittitur, otherwise reversed.
Robert E. Owens, for plaintiffs in error.
H. B. Lockett, for defendants in error.
¶1 This is an action to recover on a bond given as a condition to the issuance of a restraining order.
¶2 On August 18, 1936, A. A. Glaze procured a temporary restraining order restraining Orin, Gene, and Forrest Sparks from cutting a hay crop on certain premises until the further order of the court. It was then provided that the application of Glaze for a temporary injunction was set for August 26, 1936. In connection with the issuance of the restraining order pending the hearing on the temporary injunction, Glaze executed a bond in the sum of $250. with J. R. Prentice as surety. The condition of the bond was "that the plaintiff shall pay the said defendants any damages they may sustain, by reason off the issuing of said injunction or restraining order. if it shall be finally determined that said injunction or restraining order ought not to have been granted." On August 26, 1936, the restraining order was voluntarily dissolved by Glaze.
¶3 The Sparkses now bring this action against Glaze and Prentice to recover damages which they alleged to have been sustained by reason of the delay in harvesting their bay crop caused by the wrongful issuance of the restraining order, and also for attorney fees. Prior to the trial Glaze died and the action was revived in the name of his administrator. The jury returned a verdict in favor of plaintiffs in the sum of $175, of which $100 represented actual damages and $75 attorney fees. Judgment was rendered accordingly, and defendants bring this appeal.
¶4 1. Defendants first contend that the trial court erred in overruling their demurrer to the evidence for the reason that there is no proof that the conditions of the bond have been breached. This action is on the bond, and liability is dependent entirely upon the provision in the bond that "if it shall be finally determined that said injunction or restraining order ought not to have been issued." 32 C. J. 437. There is no evidence presented on this issue. However, defendant Glaze in his answer alleged "that said restraining order and temporary injunction was in force and effect for only eight days and that same was voluntarily dissolved by the defendant A. A. Glaze." This is a solemn admission binding on him. Lee v. Little (1921) 81 Okla. 168, 197 P. 449. Where a restraining order is voluntarily dissolved by the party procuring same, .and there is no evidence as to the circumstances surrounding its dismissal or the justification therefor, the dismissal amounts to a determination that it "ought not to have been issued." 32 C. J. 449, sec. 773, 450, sec 774. The reason behind the rule is well stated in Mitchell v. Sullivan, (1883, Knit.) 1 P. 518, where the court said:
"If the law were otherwise, a party might commence his action, obtain a temporary injunction, execute his undertaking, put the defendant to great trouble, inconvenience, and expense, and then, after all the evidence in his case was presented, relieve himself from liability upon the injunction undertaking by simply dismissing his action before the final submission of the case to the jury or to the court."
¶5 In view of the state of the record in this case, the trial court did not err in overruling defendants' demurrer to plaintiffs' evidence.
¶6 2. Defendants further contend that no attorneys' fee is recoverable under the bond. It is argued that for a restraining order, as distinguished from a temporary injunction, no bond is required by statute, and that therefore when one is given, it is a common-law bond, which, in the absence of 911 express provision therein, does not authorize the recovery of attorney fees where the restraining order is wrongfully procured. However, the record discloses that counsel for plaintiffs stated: "I...
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