Gyger v. Courtney

• Decision Date: 03 January 1900
• Citation: 59 Neb. 555,81 N.W. 437
• Parties: GYGER v. COURTNEY.
• Court: Nebraska Supreme Court

59 Neb. 555

81 N.W. 437

GYGER

v.COURTNEY.

Supreme Court of Nebraska.

Jan. 3, 1900.

Syllabus by the Court.

1. A trustee of an express trust, who was restrained with respect to matters concerning the trust estate, may maintain an action on the bond given in the injunction suit in which he is named as the obligee.

2. In an action against joint debtors, the plaintiff, unless the court otherwise direct, may proceed against such of the defendants as have been served with process.

3. Where the hearing of an application for a temporary injunction has been unreasonably postponed, attorney's fees necessarily incurred in affecting a dissolution of a restraining order are a proper element of damage, in case it is determined that the restraining order should not have been allowed.

4. A bond, voluntarily given, is not rendered void because of the fact that it was signed by one surety, when the order was that it be executed by “sureties.”

5. The voluntary dismissal of an injunction suit by the plaintiff gives the defendant the right to maintain an action on the injunction bond.

6. In the absence of evidence to the contrary, it will be presumed that the delivery of the bond was unconditional.

7. In the absence of proof that a bond was delivered in violation of an express or implied condition, the bond is effective for the purpose for which it was delivered.

Error to district court, Douglas county; Slabaugh, Judge.

Action by Charles L. Gyger against Charles F. Courtney and others. Judgment for defendant Courtney, and plaintiff brings error. Reversed.

Montgomery & Hall, for plaintiff in error.

Howard B. Smith, for defendant in error.

SULLIVAN, J.

Samuel A. Lewis and Helen A. Lewis brought this suit in the district court of Douglas county to enjoin Charles L. Gyger from prosecuting against them an action for the unlawful detention of real property. A restraining order was allowed, on condition that the Lewises should give a bond in the sum of $250, with sureties to be approved by the clerk of the court. In compliance with this order, and on the day it was made, a bond, of which the following is a copy, was executed, approved, and filed with the papers in the case: “Whereas, Samuel A. Lewis, Helen A. Lewis, has obtained an order of injunction against Charles L. Gyger in an action pending in the district court for the county of Douglas, wherein the said Samuel A. Lewis, Helen A. Lewis, is plaintiff, and the said Charles L. Gyger et al. are defendants, on his giving an undertaking to the said defendant in the sum of $250.00: Now, therefore, we, Samuel A. Lewis, Helen A. Lewis, principals, and Charles R. Courtney, surety, hereby undertake that the said Samuel A. Lewis, Helen A. Lewis, plaintiff, shall pay to the said Charles L. Gyger, defendant, all damages which the said defendant may sustain by reason of the issuing of said injunction, not exceeding $250.00, if it shall be finally decided that the said injunction ought not to have been granted. Dated Omaha, Dec. 2nd, 1893, Samuel A. Lewis, Helen A. Lewis, by F. A. Brogan, Attorney. Charles R. Courtney.” The hearing of the application for a temporary injunction was fixed for December 23, 1893. On December 7th, Gyger filed a motion to dissolve the restraining order. This motion was heard on December 22d and 23d, but there was, so far as the record shows, no final disposition of it. It appears, however, that on the day last mentioned a temporary injunction was allowed, on condition that the Lewises should give a bond forthwith in the sum of $2,000. This order was, in effect, and was doubtless intended to be, a denial of the application to vacate the restraining order. No bond having been given as required by the order of December 23d, there was entered, on December 27th, an order dissolving the restraining order; and afterwards, on May 6, 1894, the action was dismissed on the motion of the Lewises. The present action, which is grounded on the bond above set out, was instituted by Gyger against Samuel A. Lewis, Helen A. Lewis, and Charles R. Courtney to recover damages alleged to have been sustained by reason of the wrongful issuance of the restraining order. The summons issued for the Lewises not having been served, the action proceeded against Courtney alone. The trial court found the issues in favor of the defendant, and rendered judgment accordingly. The plaintiff brings the record here for review.

One contention of the defendant is that the plaintiff cannot recover because he is not the real party in interest. According to the evidence, he holds the legal title to the property involved in the action in which the bond in suit was given. He is also the obligee named in the bond, and is therefore, under the plain terms of section 32 of the Code of Civil Procedure, entitled to maintain an action upon it in his own name. Courtney's undertaking will be satisfied when he shall have paid Gyger the damages resulting from the wrongful issuance of the restraining order.

Another contention of the defendant is that the judgment is right, and should be affirmed, because there is no several liability on the bond. The action was in form against the principals and the surety. Process issued for all the defendants, but was not served on the Lewises because, according to the return of the officer, they could not be found in Douglas county. Under these circumstances, it was entirely proper to proceed against Courtney alone. Code Civ. Proc. § 84; Fox v. Abbott, 12 Neb. 328, 11 N. W. 303.

A further argument of the defendant in support of the judgment in his favor is that there is no proof of any damage sustained by the plaintiff. This contention is grounded chiefly on the decision in Carnes v. Heimrod, 45 Neb. 364, 63 N. W. 809. In the first point in the syllabus of that case...