Church v. Baker

• Decision Date: 09 March 1903
• Citation: 18 Colo.App. 369,71 P. 888
• Parties: CHURCH et al. v. BAKER et al.
• Court: Colorado Court of Appeals

71 P. 888

18 Colo.App. 369

CHURCH et al. v. BAKER et al.

Court of Appeals of Colorado

March 9, 1903

Appeal from District Court, Arapahoe County.

Action by Edward Hall Baker and another, partners as Baker & Felt against John B. Church and another. Judgment for plaintiffs and defendants appeal. Reversed.

T.J. O'Donnell and Milton Smith, for appellants.

Rogers Cuthbert & Ellis (Pierpont Fuller, of counsel), for appellees.

WILSON P.J.

This is an action to recover upon an injunction bond. John B. Church one of appellants, commenced suit against the appellees to secure an accounting, and also praying an injunction restraining defendants from doing and performing certain acts and things in the bill mentioned. The injunction was granted upon the execution by plaintiff Church of a bond with William Church as surety. Thereafter the defendants appeared, and filed at the same time a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and also a motion to dissolve the injunction. Upon hearing, the demurrer was sustained, and the injunction thereupon dissolved. Soon thereafter the defendants brought suit upon the injunction bond to recover the sum of $250, alleged to have been expended by them in the matter of the dissolution of the injunction. Upon final hearing of this suit, the defendants therein, the makers of the injunction bond, prevailed, the court directing a verdict in their favor. The main action continued to be prosecuted, and after its final determination the defendants therein, Baker & Felt, again instituted suit to recover on the injunction bond, the sole damages claimed being, as in the former suit, on account of the payment by them of the sum of $250 for attorney's fees in the matter of dissolving the injunction. The defendants pleaded res adjudicata, claiming that the former suit, in which the court had directed a verdict for defendants, was upon the same cause of action, and that the trial thereof was upon the merits. The plaintiffs in this suit disputed this, and claimed that the former suit was decided against them on the sole ground that the main action, in which the injunction had been issued, was still pending and undetermined at that time.

In the view which we take of this case, we think it entirely unnecessary to go into or pass upon this question. In our opinion, upon the authority of Tabor v. Clark, 15 Colo. 435 25 P. 181, the judgment in this action cannot be upheld. It seems clear to us that the injunction...