City of Wichita v. Krauss, No. 42470
| Court | United States State Supreme Court of Kansas |
| Writing for the Court | FATZER |
| Citation | 190 Kan. 635,378 P.2d 75 |
| Parties | The CITY OF WICHITA, Kansas, a Municipal Corporation, Appellant, v. Jacob G. KRAUSS, Appellee, Maryland Casualty Company, a Corporation, Injunction Bond Surety, Appellant. |
| Decision Date | 26 January 1963 |
| Docket Number | No. 42470 |
Page 75
v.
Jacob G. KRAUSS, Appellee,
Maryland Casualty Company, a Corporation, Injunction Bond
Surety, Appellant.
Page 76
Syllabus by the Court
The record in a proceeding to recover damages, costs and expenses on a temporary injunction bond is examined and, as more fully set forth in the opinion, it is held: The district court acquired no jurisdiction of the defendant's application for such recovery and it error in entering judgment against the plaintiff and its surety on the temporary injunction bond.
James R. Hansos, Wichita, and Fred W. Aley, Paul J. Donaldson, Robt. B. Morton, Wichita, and J. Rodney Stone, Newton, for appellant, The City of Wichita, Kansas.
William P. Thompson, Wichita, for appellant, Maryland Casualty Co.
Kenneth G. Speir, Newton, and Vernon A. Stroberg, Herbert H. Sizemore and Richard F. Hrdlicka, Newton, for appellee, Jacob G. Krauss.
FATZER, Justice.
The appeal is from a judgment assessing damages on a temporary injunction bond. The action out of which it arises was commenced by the city of Wichita in September, 1956, for a temporary[190 Kan. 636] and permanent injunction enjoining the appellee, Jacob G. Krauss, from interfering with the installation of a pipeline in the city's right of way and easement across his land.
The petition alleged an easement and right of way had previously been acquired by the city in condemnation proceedings which set forth its public use as being.
'for the purpose of laying, installing, constructing, maintaining and operating pipes, lines, mains, valves, manholes, valve structures, electric transmission, control and communication circuits, and other appurtenances necessary for the construction, extension and improvement of the water supply and waterworks system of the City of Wichita, Kansas, for use in supplying said city and its environs and the inhabitants thereof with water.'
Page 77
It was further alleged the condemnation proceeding were vaild and proper in all respects and the location of the easement and right of way was specifically described.
A full scale hearing on the issuance of the temporary injunction was had and both the city and the appellee presented evidence. The appellee took the position that because tract No. 15 which described the right of way across his land referred only to the installation of an air inlet and relief manhole and not to the entire pipeline, the city had no right to install a pipeline, hence, the injunction should not issue. After hearing all the evidence, the court ordered that the temporary injuction should issue upon the city's filing a statutory bond in the amount of $5,000. Accordingly, the city filed its statutory bond with the appellant, Maryland Casualty Company (Maryland) as surety, and the temporary injunction issued enjoining the appellee from interfering with the city's right of possession and with the installation of the pipeline. Thereafter, the appellee filed a motion to modify the temporary injunction on various grounds including, again, the ground that the right of way had been condemned only for an air inlet and relief manhole. That motion was overruled in its entirety. The appellee filed a demurrer to the city's petition, which was overruled. Thereafter, he answered and the city filed its reply.
On June 4, 1957, the case was fully tried by the court on its merits and the court took the matter under advisement until February 28, 1959. On that date, and during the February 1959 term, the district court advised counsel by letter that 'it is the finding and judgment of the court that this case is moot and the action should be and is dismissed. Costs taxed to plaintiff.' That ruling was journalized as of March 2, 1959, in a journal entry which [190 Kan. 637] was not submitted to counsel for the city for approval. In the judgment of dismissal, the court found that the temporary injunction heretofore issued 'should be, and the same hereby is, dissolved, vacated, set aside and held for naught'; that the cause 'be, and the same hereby is, dismissed,' and that 'all costs herein should be, and they hereby are, taxed against the plaintiff.'
On March 7, 1959, and during the February 1959 term, the appellee filed a 'Motion to Vacate Order of Dismissal' of March 2, 1959. The motion was not heard or ruled upon during the February 1959 term. On July 13, 1959, and during the May 1959 term, the court heard and sustained the appellee's motion and found that the city's installation of the water transmission line was wrongful and violated the appellee's rights and that he should be awarded judgment on all issues against the city. The court retained jurisdiction of the cause for the purpose of assessing damages sustained by reason of the wrongful issuance of the temporary injunction and the wrongful act of installing the water transmission line on the...
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State of Kan. ex rel. Stephan v. Adams, No. 81-1648.
...event. In similar instances, several state courts have denied the recovery of damages on an injunction bond. City of Wichita v. Krauss, 190 Kan. 635, 378 P.2d 75, 78-79 (Kan.1963); Mengel Co. v. International Woodworkers, 220 Miss. 317, 70 So.2d 613, 615 (Miss.1954); Scott v. Frank, 121 Iow......
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Alder v. City of Florence, No. 43861
...founded upon the injunction action. * * *' (p. 73.) This language was quoted and approved as late as 1963 in City of Wichita v. Krauss, 190 Kan. 635, 640, 378 P.2d Whether the trial court had jurisdiction to assess costs and damages under the bond in the original injunction action, as here,......
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Del-Fair, Inc. v. Conrad Seyferth, 81-LW-3022
...be shown that the injunction was improperly granted, Wakefield v. Griffiths (1927), 45 Idaho 51, 261 P. 665; Wichita v. Krauss (1963), 190 Kan. 635, 378 P. 2d 75. Concerning the first proposition, "perhaps it is better to say that such a termination is not an adjudication of wrongfulness bu......
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Fillmore City v. Reeve, No. 14697
...Utah 2d 251, 495 P.2d 28 (1972). 4 Junction Irrigation Co. v. Snow, 101 Utah 71, 118 P.2d 130 (1941). See also City of Wichita v. Krauss, 190 Kan. 635, 378 P.2d 75 (1963); 42 Am.Jur.2d, Injunctions, Section 5 That this is true, see Taylor v. E. M. Royle Corp., 1 Utah 2d 175, 264 P.2d 279; C......
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State of Kan. ex rel. Stephan v. Adams, No. 81-1648.
...event. In similar instances, several state courts have denied the recovery of damages on an injunction bond. City of Wichita v. Krauss, 190 Kan. 635, 378 P.2d 75, 78-79 (Kan.1963); Mengel Co. v. International Woodworkers, 220 Miss. 317, 70 So.2d 613, 615 (Miss.1954); Scott v. Frank, 121 Iow......
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Alder v. City of Florence, No. 43861
...founded upon the injunction action. * * *' (p. 73.) This language was quoted and approved as late as 1963 in City of Wichita v. Krauss, 190 Kan. 635, 640, 378 P.2d Whether the trial court had jurisdiction to assess costs and damages under the bond in the original injunction action, as here,......
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Del-Fair, Inc. v. Conrad Seyferth, 81-LW-3022
...be shown that the injunction was improperly granted, Wakefield v. Griffiths (1927), 45 Idaho 51, 261 P. 665; Wichita v. Krauss (1963), 190 Kan. 635, 378 P. 2d 75. Concerning the first proposition, "perhaps it is better to say that such a termination is not an adjudication of wrongfulness bu......
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Fillmore City v. Reeve, No. 14697
...Utah 2d 251, 495 P.2d 28 (1972). 4 Junction Irrigation Co. v. Snow, 101 Utah 71, 118 P.2d 130 (1941). See also City of Wichita v. Krauss, 190 Kan. 635, 378 P.2d 75 (1963); 42 Am.Jur.2d, Injunctions, Section 5 That this is true, see Taylor v. E. M. Royle Corp., 1 Utah 2d 175, 264 P.2d 279; C......