Creek v. Mcmanus

• Citation: 13 Mont. 152
• Parties: CREEK v. McMANUS et al.
• Decision Date: 10 April 1893
• Court: United States State Supreme Court of Montana

13 Mont. 152

CREEK
v.
McMANUS et al.

Supreme Court of Montana.

April 10, 1893.

Appeal from district court, Gallatin county; Frank K. Armstrong, Judge.

Action by Rachel E. Creek against John McManus and others on an injunction bond. There was a judgment for defendants, and plaintiff appeals. Reversed.

The other facts fully appear in the following statement by DE WITT, J.:

The plaintiff brought this action to recover against the defendants damages for the alleged wrongful issuance of an injunction. McManus, defendant herein, brought an action for an injunction against this plaintiff, and, in such action, gave the statutory undertaking, with Cline and Davis, the other defendants herein, as sureties. That action was for an injunction only. In that action the plaintiff herein and defendant therein recovered judgment for costs, and for the dissolution of the injunction. Now, in the case at bar she seeks damages occurring by the issuance of that injunction. The judgment in this case was for defendant, and plaintiff herein appeals. The case was tried to a jury. At the close of the evidence for the plain tiff, the defendant moved the court “to instruct the jury to bring in a verdict for the defendant, on the ground of a failure of proof by plaintiff.” This motion was granted, and the court instructed the jury accordingly. In pursuance to the instruction, the jury found for the defendants, and judgment was thereupon entered. From this judgment the plaintiff appeals.

E. P. Cadwell. for appellant.

Luce & Luce, for respondents.

DE WITT, J., (after stating the facts.)

Appellant contends that the granting of the motion to instruct the jury to find for the defendants was error. This action by the court in a civil case was practically, in effect, the granting of a nonsuit, and must be classified and treated as a nonsuit. That this is the proper view of that action by the court was so fully, and, to my mind, satisfactorily, treated in the recent case of McKay v. Railway Co., (December term,) 31 Pac. Rep. 999, that it would not be profitable to add to the remarks made in that case. In reviewing the judgment rendered upon the sustaining of that motion for a nonsuit, all facts will be considered as proved which the evidence tends to prove. Herbert v. King, 1 Mont. 475;Gans v. Woolfolk, 2 Mont. 463. Does the evidence in this case tend to prove any cause of action? The cause of action was for damages occurring by reason of the injunction action of defendant herein against plaintiff...