Duncan v. Commercial Bank of Las Animas, 12339.

Citation89 Colo. 153,300 P. 572
Decision Date01 June 1931
Docket Number12339.
PartiesDUNCAN et al. v. COMMERCIAL BANK OF LAS ANIMAS et al.
CourtSupreme Court of Colorado

Rehearing Denied June 22, 1931.

In Department.

Error to District Court, City and County of Denver; Frank McDonough, Sr., Judge.

Suit by the Commercial Bank of Las Animas, Colo., against Guy D Duncan, G. Dale, and another. To review a judgment for plaintiff, defendants named bring error.

Affirmed.

Guy D. Duncan, of Denver, for plaintiffs in error.

C. E Sydner and Granby Hillyer, both of Denver, and G. R. Hillyer of Springfield, for defendants in error.

MOORE J.

The Commercial Bank of Las Animas sued Guy D. Duncan, G. Dale and Continental Casualty Company in the Denver district court to recover on a $500 temporary injunction bond executed by these defendants in case No. 96612 in the Denver district court wherein Guy D. Duncan and G. Dale were plaintiffs and the Commercial Bank of Las Animas and Dan Gates, as sheriff of Bent county, were defendants. The trial court found that plaintiff had been damaged in the full amount of the bond. To review a judgment entered thereon, Guy D. Duncan and G. Dale prosecute this writ. The Continental Casualty Company erroneously named as a defendant in error is not a party in this court.

The record discloses that the Commercial Bank of Las Animas had a judgment against one M. L. Langley on September 2, 1926, to satisfy which the sheriff of Bent county levied upon 64 1/2 shares of capital stock of the Commercial Bank of Las Animas standing in the name of the judgment debtor. Pending the advertising and sale of this stock, Duncan and Dale brought an action against the Commercial Bank of Las Animas in the Denver district court claiming an interest therein and seeking an injunction restraining the sale of said shares of stock. A temporary restraining order was issued and the bond here involved was given. It provided that, 'In case said temporary restraining order or temporary injunction shall issue, the said plaintiffs will pay to the defendants all costs and damages (not to exceed $500) as shall be awarded against the complainant in case the said temporary restraining order or temporary injunction shall be modified or dissolved in whole or in part of if it shall be adjudged that such emergency did not exist or that the plaintiff created, or connived at its creation, by neglect or otherwise.'

This case was tried upon the merits, and the court found for the defendants, dissolved the temporary injunction, and dismissed the action at plaintiff's costs. Upon issue being joined in the present suit, it was tried to ...

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