Hibbs v. W. Land Co.

• Decision Date: 23 October 1890
• Citation: 81 Iowa 285,46 N.W. 1119
• Parties: HIBBS v. WESTERN LAND CO. ET AL.
• Court: Iowa Supreme Court

81 Iowa 285

46 N.W. 1119

HIBBS

v.WESTERN LAND CO. ET AL.

Supreme Court of Iowa.

Oct. 23, 1890.

Appeal from district court, O'Brien county; SCOTT M. LADD, Judge.

This is an action on an injunction bond. There was a demurrer to the petition, which was sustained, and the plaintiff appeals.D. D. McCallun, for appellant.

John S. Monk, for appellees.

ROTHROCK, C. J.

The averments of the petition are, in substance, as follows: That the Western Land Company brought suit against Hibbs, the plaintiff herein, in which a writ of injunction was issued restraining the defendant from trespassing on certain real estate; that said Hibbs employed an attorney to file a motion to dissolve the injunction, and to make proper defense to said action; that a motion to dissolve the injunction and an answer were filed and the injunction was dissolved; that defendant was put to great trouble and expense in defending against the wrongful issuance of said injunction, and paid an attorney $50 therefor and was 20 days engaged in defending said wrongful issuance of said writ; that the condition of the injunction bond has been broken, and judgment is demanded upon said bond for $110. The demurrer, among other grounds, raises the objection to the petition that it fails to show that plaintiff sustained any damage by reason of said injunction, or that there was any occasion to incur any expense to procure its dissolution. It will be observed that the averments of the petition are very general in their terms. It does not appear upon what grounds the plaintiff was enjoined from trespassing upon the land, nor upon what grounds the injunction was dissolved, nor what was in issue between the parties touching the land, nor whether the plaintiff herein was deprived of any substantial right by being enjoined from trespassing on the land. It was held in the case of Bank v. Gifford, 70 Iowa, 580, 31 N. W. Rep. 881, that, in order to recover damages upon an injunction bond, it is necessary that it should appear that the plaintiff was prevented by the injunction from exercising or enjoying some right or privilege which he desired to exercise, and which he was entitled to enjoy. If the injunction in this case deprived the plaintiff herein of any right, or restrained him from taking possession of land to the possession of which he had the right, and the possession was of some value, we think he might maintain an action on the bond. The condition of an injunction bond is that the...