Glen Jean, Lower Loup & D.R. Co. v. Kanawha, Glen Jean & E.R. Co.

• Citation: 35 S.E. 978,47 W.Va. 725
• Parties: GLEN JEAN, LOWER LOUP & D. R. CO. v. KANAWHA, GLEN JEAN & E. R. CO.
• Decision Date: 07 April 1900
• Court: West Virginia Supreme Court

35 S.E. 978

47 W.Va. 725

GLEN JEAN, LOWER LOUP & D. R. CO. v. KANAWHA, GLEN JEAN & E. R. CO.

Supreme Court of Appeals of West Virginia.

April 7, 1900

Submitted January 25, 1900

Syllabus by the Court.

1. At common law, damages occasioned by the suing out of an injunction were not recoverable, unless the suit was without probable cause, or prosecuted through malice.

2. The statutory bond is intended to supply this defect in the common law.

3. Where no bond has been required, damages are not recoverable unless the injunction was maliciously sued out, without probable cause.

4. In an action of trespass to real estate, unless the object of the suit is to try the title to the land, it is not necessary to describe it with accuracy and particularity, but only to designate it by possession name, or by some of its abuttals or monuments, sufficiently to give the defendant notice of its locality, so that he may properly plead to the action.

Error to circuit court, Fayette county; J. M. McWhorter, Judge.

Action by the Glen Jean, Lower Loup & Deepwater Railroad Company against the Kanawha, Glen Jean & Eastern Railroad Company. From a judgment dismissing the action, plaintiff brings error. Reversed in part.

J. W Davis and A. D. Preston, for plaintiff in error.

Brown Jackson & Knight, for defendant in error.

DENT J.

The Glen Jean, Lower Loup & Deepwater Railroad Company filed its declaration in trespass on the case in the circuit court of Fayette county against the Kanawha, Glen Jean & Eastern Railroad Company, which demurred thereto. The demurrer was sustained, and, plaintiff refusing to amend, the suit was dismissed, and this writ of error followed.

The declaration contains five counts. The first, second, and fifth are for damages sustained by reason of the suing out of an injunction which was afterwards dissolved. They fail to charge that the injunction was sued out maliciously or without probable cause. This is a fatal defect. The authorities relied on by plaintiff's counsel are all against him. They are unanimous in holding that no action lies at common law if the injunction was sued out on probable cause and without malice; and the case of Gorton v. Brown, 27 Ill. 489, holds that, if a bond is given, no action will lie, even where there is lack of probable cause, and malice exists, but the action must be on the bond. If no bond is given, it is intimated that the action might lie, if there is want of probable cause, or malice exists. In 7 Lawson, Rights, Rem. & Prac. 5791, it is said that a "defendant in an injunction suit has a common-law right of action to recover damages, in addition to the remedy by action on the bond." But this is where the injunction is obtained and used maliciously, without probable cause. The cases cited to sustain the text show this to be the true meaning of the language quoted. In the case of Mitchell v. Railroad Co., 75 Ga. 398, it is held that an action does not lie at common law unless the injunction is sued out maliciously and without probable cause. So with the cases of Manlove v. Vick, 55 Miss. 567; Iron Mountain Bank v. Mercantile Bank, 4 Mo App. 505; Hayden v. Keith, 32 Minn. 277, 20 N.W. 195. These cases all sustain the text found in High, Inj. § 1648, and 10 Enc. Pl. & Prac. 1119, and there are none to the contrary. The very purpose of the legislature in requiring an injunction bond to cover actual damages sustained was to supply this defect in the common law, and was not declarative thereof. The defendant to a dissolved injunction has two remedies,--one (statutory) on the injunction bond; the other (common law) for the malicious use of judicial process, without probable cause. Where no bond is given, the latter remedy alone exists. It becomes the defendant to an injunction suit to see that a good and sufficient bond is given, and, unless he does so, he can recover no damages, in the presence of probable cause, and in the absence of malice. The defect in the bond complained of, if a defect,--for this is a matter not to be determined in this suit,--could have been easily remedied, had counsel been attentive to the interest of his client. For this inattention it must look to the neglectful counsel, and not to the court or the present defendant. In the case of Tavenner v. Morehead, 41 W.Va. 116, 23 S.E. 673, a similar right of action was considered by this court, and the following statement of the law was quoted with approval (page 123, 41 W. Va., and page 676, 23 S. E.): "This rule of public policy, as has been well said, 'is applicable alike to civil and criminal remedies and proceedings, that parties may be induced freely to resort to the courts and judicial officers for the enforcement of their rights and the remedy of their grievances, without the risk of undue punishment for their own ignorance of the law, or for errors of courts and judicial officers. The remedy of the party unjustly arrested or imprisoned is by the recovery of costs which some statute may give him, or by an action for malicious prosecution in case the prosecution has been from unworthy motives and without probable cause.' Teal v. Fissel (C. C.) 28 F. 351." This law applies with equal force in this case. The remedy of the party unjustly enjoined is the recovery of costs in the first instance, damages on the statutory bond, if one be given, or an action of trespass on the case for malicious prosecution of the injunction suit. The gist of the latter action is the want of probable cause, and the maliciousness of the defendant's conduct. Vinal v. Core, 18 W.Va. 1; Hale v. Boylen, 22 W.Va. 234; Brady v. Stiltner, 40 W.Va. 289, 21 S.E. 729.

The fourth count does not even charge a legal trespass. It avers that the plaintiff had a right of way (describing it), and proceeds: "And plaintiff having said right of way and being possessed thereof, and then and there having the same graded by sundry laborers, and being so possessed thereof the...