Cole v. Edwards

• Decision Date: 20 January 1898
• Citation: 73 N.W. 863,104 Iowa 373
• Parties: E. J. COLE, Appellant, v. T. M. EDWARDS, L. CRANE, and SAMUEL BOONE
• Court: Iowa Supreme Court

73 N.W. 863

104 Iowa 373

E. J. COLE, Appellant, v. T. M. EDWARDS, L. CRANE, and SAMUEL BOONE

Supreme Court of Iowa, Des Moines

January 20, 1898

Appeal from Harrison District Court.--HON. F. R. GAYNOR, Judge.

FROM an order striking the main item of damages from plaintiff's petition, he appeals.-- Affirmed.

AFFIRMED.

S. H Cochran for appellant.

Roadifer & Arthur for appellees.

OPINION

LADD J.

After the affirmance of a decree permanently enjoining the defendant Edwards from practicing his profession in Woodbine and vicinity, (Cole v. Edwards, 93 Iowa 477, 61 N.W 940), the plaintiff began this action on the supersedeas bond filed in that case. conditioned for the payment of "all costs and damages that shall be adjudged against said appellant on this appeal," and alleged, among other things, that during the pendency of the appeal Edwards continued in the practice of medicine in the same locality, and that by reason thereof the plaintiff sustained damages in the sum of one thousand, five hundred dollars. All the averments of the petition with reference to this item of damages were stricken therefrom, on motion of the defendants, because "no recovery for said damages is provided for in the conditions of said appeal bond, and no legal recovery can be had for such damages." The plaintiff elected to stand on this ruling, and, having taken judgment on other items included in the bond, appeals.

This order may be upheld on either of the two grounds: (1) The damages were not covered by the bond, and (2) were not occasioned by the appeal. Liability cannot be extended beyond the terms of such an instrument. Jayne v. Drorbaugh 63 Iowa 711, 17 N.W. 433. See Noyes v. Granger, 51 Iowa 227, 1 N.W. 519; 1 Enc Pl. & Prac. 1015, and notes. Damages adjudged on appeal, and not such as result from a violation of the writ of injunction, are those contemplated by the bond. An appeal or stay does not vacate or affect the judgment appealed from. Code 1873, section 3186. The decree perpetually enjoining Edwards from engaging in the practice of medicine at Woodbine and vicinity was not vacated or suspended by the appeal, or the filing of the bond. Lindsay v. District Court, 75 Iowa 509, 39 N.W. 817. See Allen v. Church, 101 Iowa 116, 2, 70 N.W. 127 Enc. Pl. & Prac. 326. If he did as alleged, he was guilty of contempt of court, and all the provisions of law for enforcing obedience might have been resorted to by the...