Cohn v. Lehman

• Decision Date: 19 December 1887
• Parties: Cohn, Appellant, v. Lehman et al
• Court: Missouri Supreme Court

6 S.W. 267

93 Mo. 574

Cohn, Appellant, v. Lehman et al

Supreme Court of Missouri

December 19, 1887

Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner Judge.

Affirmed.

Noble & Orrick and George R. Lockwood for appellant.

(1) The plea is not a good defence in form or substance. St Louis Gas Light Co. v. City of St. Louis, 11 Mo.App. 55; affirmed, 84 Mo. 202; Moody v. Deutsch, 85 Mo. 237. (2) The plea is bad, in that it avers no facts to show that upon appeal a supersedeas was effected under United States statutes. R. S. U.S. secs. 1000, 1007; 18 U.S. Stat. at Large, 318; U. S. Rules in Equity, No. 93; Adams v Low, 16 How. [U.S.] 144; Sage v. Railroad, 93 U.S. 417; Hogan v. Ross, 11 Howard [U.S.] 297; Railroad v. Harris, 7 Wall. [U.S.] 574; State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Vogel, 6 Mo.App. 526. (3) The appeal, as averred, does not, in any wise, suspend the right of plaintiff in this action to sue upon and enforce his bond as made. An appeal, without statutory supersedeas, does not prevent the enforcement of the decree, or any security auxiliary to it. Stafford v. Bank, 16 How. [U.S.] 135; Orchard v. Hughes, 1 Wall. [U.S.] 73; Canal Co. v. Gordon, 2 Abb. [U.S.] 479; Souter v. Railroad, Woolworth [Cir. Ct.] 80; Farmers, etc., Co. v. Railroad, 4 Dillon [Cir. Ct.] 546; Woodbury v. Bowman, 13 Cal. 634; Flagg v. Walker, 113 U.S. 659. "Neither an injunction nor a decree dissolving an injunction, is reversed or nullified by an appeal or writ of error before the cause is heard in the Supreme Court." Leonard v. Ozark Land Co., 115 U.S. 465; Slaughter House Cases, 10 Wallace, 273-297; Hovey v. McDonald, 109 U.S. 150-161. (4) The petition avers a dissolution of injunction, as to plaintiff, long before the final decree or appeal. There was no appeal possible from this order dissolving the injunction. Young v. Grundy, 6 Cranch, 51; Thomas v. Wooldridge, 23 Wall. 283. The cause of action accrued upon this order, and the statute of limitations began to run. Anderson v. Coleman, 56 Cal. 124. The bond cannot be defeated by an ordinary appeal without supersedeas. Sage v. Railroad, 93 U.S. 417. (5) The decisions of the state courts, as to their own practice, cannot affect the operation of the statutes of the United States, or the practice and rules thereunder.

Madill & Ralston for respondent, Joseph Wolf.

(1) The plea is good as a plea in abatement, or in suspension of the action, both in form and substance. Stephens on Pleading [Heard's Ed.] 46, 47, 51, 138, 198, et seq.; R. S., secs. 3516, 3524, 3572; May v. Burk, 80 Mo. 675. Under our statutes, a defendant may join in his answer a defence on the merits and a plea in abatement or suspension of the action. Little v. Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo. 261; Young Men's Christian Association v. Dubach, 82 Mo. 475. (2) The terms of the injunction bond sued on contemplate a final decision of the case before any rights or liabilities can be asserted or enforced under it, and the pendency of the appeal constitutes a good plea in abatement or suspension of the present action. No action at law can be maintained on any bond or undertaking given for an injunction, until the action in which the injunction is issued is finally and absolutely ended and disposed of by a final decree or judgment. Hilliard on Injunctions, [3 Ed.] sec. 27, p. 84; 2 High on Inj. [2 Ed.] sec. 1649, p. 1040; Murfree on Official Bonds [1885] sec. 391, p. 281; Bemis v. Gannett, 8 Neb. 236; Gray v. Viers, 33 Md. 159; Penny v. Holdberg, 53 Miss. 567; Goodbar v. Dunn, 61 Miss. 624; Bently v. Joslin, Hempstead (Cir. Ct.) 218; Clark v. Clayton, 61 Cal. 634; Thompson v. McNair, 64 N.C. 448; Weeks v. Southwick, 12 How. Pr. 170; Brown v. Galena Mining Co., 32 Kan. 528; White v. Clay's Ex'rs, 7 Leigh, 68; Guilford v. Cornell, 4 Abb. Pr. 220. (a) And the same rule applies in the (nearly) analogous case of suit on an attachment bond. Drake on Attachment [6 Ed.] sec. 162a, p. 144, and sec. 152, p. 138; Nolle v. Thompson, 3 Metc. [Ky.] 121; State v. Williams, 48 Mo. 210; Spring v. Besore, 12 B. Mon. 533; Ball v. Gardner, 21 Wend. 270; Bennett v. Brown, 20 N.Y. 99; Robinson v. Plimpton, 25 N.Y. 486; Murfree on Official Bonds, sec. 379, p. 270. (b) As to the power of courts to control and relieve from the express terms of injunction and appeal bonds, see Russell v. Farley, 105 U.S. 433; Kountze v. Hotel Co., 17 Otto, 378. (3) The whole case, and every matter, order, and thing in controversy in it, is taken to the Supreme Court of the United States for final decision. Forgay v. Conrad, 6 How. [U.S.] 201; Perkins v. Fourniquet, 6 How. [U.S.] 207. (a) The statute of limitations does not begin to run against actions on injunction bonds until after a final decree is rendered, and where the cause is appealed, affirmed on appeal. Murfree on Official Bonds, sec. 392, p. 281, citing Pickett v. Boyd, 11 Lea [Tenn.] 498; also authorities cited under last point. (b) And this rule applies to all cases where the plaintiff's right to sue depends upon, or is limited after, a judgment or decree. Lesem v. Neal, 53 Mo. 412; Chouteau v. Rowse, 15 Mo.App. 594, construing R. S., sec. 3239.

OPINION

Brace, J.

This suit was instituted in the circuit court of the city of St. Louis to recover twenty-five thousand dollars, the penalty in an injunction bond alleged to have been executed by defendants in an equity suit commenced in the United States district court for the western district of Arkansas, wherein Frederick Kraemer, assignee of Isaac Cohn, bankrupt, was plaintiff, and Isaac Cohn and Mark S. Cohn, plaintiff herein, were defendants. Joseph Wolf was the only defendant served. The condition of said bond, as set out in the petition, is as follows: "That, whereas the said Frederick Kraemer, as assignee of Isaac Cohn, a bankrupt, had sued out and procured a restraining order in the above entitled cause against said defendants. Now if the said restraining order or any part thereof, at the final hearing of such cause, should be set aside, or discharged, or in the event that said injunction should be dissolved, at any time prior to the final hearing of said cause, then they (the defendants in this present cause) undertake to pay said Isaac Cohn and M. S. Cohn, or either of them, such damages as they or either of them might sustain in consequence of said restraining order, to the extent that the same might be discharged as aforesaid."

A breach of the condition of said bond is assigned as follows: "And the plaintiff, assigning a breach on said writing obligatory by defendants, executed and filed as aforesaid, in said cause, says, that the defendants and each of them hath not performed the conditions of said writing obligatory, in this: That, afterwards, to-wit, in the said district court of the United States for the western district of Arkansas, in said cause, wherein Frederick Kraemer, as assignee in bankruptcy of said Isaac Cohn, bankrupt, was complainant, and said Isaac Cohn, and M. S. Cohn, here plaintiff, were defendants, and being the same cause wherein said restraining order and injunction hereinbefore mentioned were obtained, and said writing obligatory executed by defendants was filed, was, by the order of said court, on motion of said defendants, and on the twenty-fifth day of November, A. D., 1879, dissolved at the cost of the complainant, and it was further ordered that said Daniel P. Upham, receiver, appointed as aforesaid, surrender and turn over to said defendant, M. S. Cohn, here plaintiff, his solicitors and agents, the goods, wares, and merchandise, and other property of every nature and description, which were at the business-house claimed by said M. S. Cohn, on Garrison avenue, at the time of the service of the injunction aforesaid, and embraced in said order; and said receiver, upon filing of his report of what he might have done, under the order theretofore made therein, together with the receipt of said defendant, M. S. Cohn, here plaintiff, his solicitors of record or agents, should be discharged from his receivership; and such proceedings were in said cause further had, that an amended bill having therein been filed by the said Frederick Kraemer, as assignee, as aforesaid, against the defendants therein named, Isaac Cohn, and M. S. Cohn, here plaintiff, said bill therein was, as to plaintiff herein, M. S. Cohn, dismissed with costs, May 8, 1882, at the May term of said district court of the United States; and such proceedings were further had therein, at the May term, 1883, that on June 7, 1883, on rehearing, the said bill was dismissed also as to said Isaac Cohn; and the plaintiff saith the defendants, or either of them, hath not paid, though often requested, such damages as said M. S. Cohn, here plaintiff, did sustain in consequence of said restraining order, to the extent that the same was discharged, as aforesaid; that this plaintiff, there defendant, was greatly wronged and damaged in and by the said proceedings had in said cause in the United States district court, in obtaining said injunction and restraining order, and the enforcement against him in that," etc., setting forth many and specific allegations of damage to plaintiff's business, profits, credit, etc. "Wherefore plaintiff prays judgment against defendants for the amount of said bond, the sum of twenty-five thousand ($ 25,000) dollars, with interest and costs."

The defendant, Wolf, in his answer to the petition, denies the execution of the bond, the condition as set out in the petition, the breach assigned, and all damages, and after admitting the institution of said suit, the appointment of a receiver, and other proceedings therein, then proceeds to make the following admission and to set up the following defence to plaintiff's cause...