Donovan v. Stewart

• Decision Date: 25 January 1860
• Parties: Donovan v. Stewart and Others
• Court: Indiana Supreme Court

15 Ind. 493

Donovan v. Stewart and Others

Supreme Court of Indiana

January 25, 1860

APPEAL from the Wabash Circuit Court.

The judgment is affirmed, with costs.

J. U Pettit, C. Cowgill, and H. P Biddle, for appellant.

Stewart and Brackenridge, for appellees.

OPINION

Hanna J.

Donovan sued the appellees on an injunction bond and assigned as breaches thereof, that he had been injured, in this; that he was, by said injunction, prevented from improving, enjoying, and deriving rents from his lands, &c.; that he lost the sale thereof, and they have since become greatly depreciated in value; that his title thereto was thereby brought into disrepute and discredit; that he was thereby prevented from making sale of said lands; that said lands and improvements have become in jured, dilapidated, and wasted, without any fault, &c.; that great expense was occasioned by said proceedings

A demurrer was sustained to the complaint, of which ruling the appellant now complains.

The complaint avers, among other things, that Stewart and others had obtained a judgment on, &c., for, &c., against one English; that before said judgment was obtained, appellant had purchased, in good faith, &c., of said English, the several tracts of land described; that said Stewart, upon a bill filed, averring fraud in said sale, obtained the injunction, upon the granting of which said bond was executed.

The injunction had application to personal property, choses in action, & c.; but in these appellant is not shown to have had any interest. He was interested only in the real estate described.

The question is, whether he sufficiently shows breaches of the bond, in reference to the lands so by him held.

It was assigned, as causes of demurrer, that he does not show that, if the injunction had not been obtained, he would have improved his land, or that he had incurred any expense in preparation, or contemplation of any certain improvements; nor does he aver that he could have obtained any specific rents, &c.; nor does he show that he could have sold any of said property, stating when and to whom, and was prevented, because of the discredit of the title; nor does he show in what manner, particularly, said lands were wasted, the possession not having been taken from him, without his fault; nor does he specify any expense that he had been subjected to because of said injunction; that the damages claimed are speculative, and the injuries charged in gross, and not as to separate tracts of said land, so as to enable defendants to defend, &c.

There were fifteen specific...