Hammonds v. Belcher

• Decision Date: 01 January 1853
• Parties: HAMMONDS v. BELCHER AND OTHERS.
• Court: Texas Supreme Court

10 Tex. 271

HAMMONDS

v.BELCHER AND OTHERS.

Supreme Court of Texas.

1853.

The damages sustained by the defendant by reason of the issue of an injunction may be pleaded in reconvention in the same suit. (Note 49.)

The statute (Hart. Dig., art. 1601) evidently contemplates that the assessment of damages may be simultaneous with the dissolution of the injunction; and when they are to be assessed by the court for the want of probable cause, there is no doubt judgment for them should be immediately rendered. But when the injunction has operated on other matters than the collection of money, questions of difficulty as to the damages occasioned by the injunction may arise; and, as the statute has not positively required them to be tried with the main action, on penalty of being excluded from subsequent cognizance, we are of opinion that the defendant could rightfully prosecute a separate action to have the question of damages and their amount adjudicated.

Appeal from Rusk. John Belcher, one of the appellees, obtained an injunction to restrain Hammonds, the appellant, from using and carrying on a ferry established by him across the Sabine river in the vicinity of one previously opened by the said appellee. This appellee, as principal, with the other appellees, executed the usual bond preliminary to the issue of the writ; and the injunction having been dissolved, this suit was brought on the bond to recover damages for wrongfully and vexatiously suing out and prosecuting said writ. Exceptions to the petition were sustained. The only question was whether an original action could be brought on the bond, or whether the damages (if the appellant had suffered any) should have been assessed in the first action between the parties.

M. Casey, for appellant. The only question at present to be considered is, can a suit upon an injunction bond be sustained?

Although the statute says (Hart. Dig., art. 1602) “that when an injunction restraining the collection of money is dismissed the court shall assess the damages,” “and in all other cases the damages shall be assessed by a jury sworn for that purpose,” yet it is not made imperative that the damages should be assessed by a jury at the same time at which the subject-matter in litigation and enjoined is decided against the plaintiff. Hence it is conclusive that those damages may be recovered at any other time by suit on the bond.

When the appellee brought suit against the appellant for the franchise of the ferry, the appellant could not plead by set-off or in reconvention the amount of damages which he had sustained by the interruption of the franchise, because those damages were unliquidated and not founded in contract, but arising from a tort or unfounded right claimed by the appellee.

Suppose the appellee should have dismissed the first suit before trial, then the appellant could have no recovery except on the appellee's bond, and suit should have been brought on that alone, otherwise the appellant may be interrupted at any time, and incalculable injury, amounting to a total deprivation of the franchise, may be done to him without any possibility of redress.

J. Armstrong, for appellees. The court below did not err in sustaining appellees' exceptions to appellant's petition. Appellant's only remedy against appellee and his securities on the injunction bond is given by article 1602, (Hart. Dig., p. 495.) And having failed to pursue that remedy in the...