Holliday's Ex'rs v. Myers

• Decision Date: 10 September 1877
• Citation: 11 W.Va. 276
• Parties: Holliday's Ex'rs v. Myers et al(Absent, Green, President).
• Court: West Virginia Supreme Court

11 W.Va. 276

Holliday's Ex'rs

v.Myers et al

(Absent, Green, President).

Supreme Court of Appeals of West Virginia.

Decided September 10, 1877.

The plaintiff brought an action of debt against the defendants, and the declaration filed alleges that on the 15th day of April 1869, the defendants, by their certain writing obligatory, "bound themselves, their heirs, executors, administrators, &c, jointly and severally to pay unto J. and E. Holliday, executors as aforesaid, the sum of $400.00; the conditions of said obligation being in substance as follows, to-wit: If the said Joseph Myers shall well and truly pay unto said J. and R. B.oiilday, executors of J. W. Holliday, the judgment in a suit, and at I loss, damages or injury they may sustain by reason of an injunction which was awarded by E. B. Hall, Judge, on the 28th day of January 18.69, in the case of John W. Holliday's executors v. Joseph Myers, then said obligation shall be void; otherwise to remain in full, force and effect. And plaintiffs aver that the judgment due them which was enjoined by the order of E. B. Hall, on the 28th day of January 1869, was for the sum of $100X0, with interest thereon from the 24th day of December 1861; and $100.00 with interest from the 24th day of December 1862, and $24.41 costs of the original suit, and $32.45, costs of the injunction suit; and that the injunction so ordered by said E. B. Hall, Judge, &c, was dissolved on the 15th day of November 1870, and that in pursuance of the statutes in such case made and provided the said plaintiffs were entitled to recover from the defendants the amount of said judgment and costs as aforesaid, together with ten per cent damages thereon from the 28th day of January 1869, to the 15th day of November 1870, and costs of the injunction, $32.45. Yet the said defendants have not paid the amount of the said judgment for debt, interest and costs, or damages aforesaid, &c. The declaration was filed at April rules, 1871. Afterwards, on the 22d day of September 1871, the parties ap. peared in court, by their attorneys; and the office judgment had at rules in the cause was set aside, and the defendants filed their joint plea to the action, upon which issue was joined. Afterwards, on the 4th day of January 1872, the parties again appeared in court, by their attorneys, and the defendants, by their attorney, withdrew their plea at a former day pleaded. Thereupon the plaintiffs having proved their cause it is considered by the court that the plaintiffs recover against the defendants, Joseph Myers and James M. Johnson, $301.72, with interest thereon from the 4th day of January 1872, till paid; also their costs by them on their behalf in this cause expended. And the defendants file their bill of exceptions in the following words and figures, to-wit, which are duly signed and enrolled: "No demurrer was filed to the declaration, and oyer was not craved of the bond declared upon," The third section of chapter 134 of the Code of this State, provides that " no judgment or decree shall be stayed or reversed for the appearance of either party, being under the age of twenty-one years, by attorney, if the verdict, when there is one, or the judgment or decree, be for him and not to his prejudice; or for want of warrant of attorney; or for want of a similiter; or any misjoining of issue; or for any informality in the entry of the judgment or decree by the clerk; or for the omission of the name of any juror; or because it may not appear that the verdict was rendered by the number of jurors required by law; or for any defect, imperfection or omission in the pleadings which could not be regarded on demurrer; or for any other defect, imperfection or omission which might have been taken advantage of on demurrer or answer, but was not so taken advantage of. Held:

I. For reasons stated in the opinion, in writing filed in the cause, that under and by virtue of said 3d section of said 134th chapter of the Code, the defects in said declaration are cured after the rendition of said judgment.

II. That the allegations of the declaration do not affirmatively show that plaintiffs have no right to recover in the action

III. That although the conditions of an injunction bond are not so extensive as the statute requires, yet, if it contains a material part of the condition required, the bond is not void, but binds the obligors to the extent of such condition or conditions; and where the bond contains some conditions or promises not required by the statute, and some of those which are required, it is valid and binding to the extent of the latter.

IV, The judgment rendered is not a judgment by default within the meaning of the 5th section of said chapter 134 of the Code of this State.

V. The judgment is not by confession within the meaning of the 2d section of chapter 134 of the Code of this State.

Supersedeas to a judgment of the circuit court of the county of Jefferson, rendered on the 4th day of January 1872, in an action of debt, then pending in said court, wherein J. and R. Holliday, executors of John W. Holliday, were plaintiffs, and Joseph Myers and James M. Johnson were defendants.

The supersedeas was allowed upon the petition of the defendant James M. Johnson.

Hon. E. B. Hall was Judge of the circuit court of Jefferson county, at the time the judgment complained of was rendered.

The facts sufficiently appear in the opinion of the Court.

James M. Mason, for defendant below and plaintiff in error:

It affirmatively appears, that suit is brought on a defective injunction bond, and that the injunction was awarded to stay proceedings on a judgment for money. The proposition is: A defective injunction bond does not furnish any cause of action.

I. 1. Every action on an injunction bond must proceed on the theory that an injunction caused a stay of proceedings, which stay produced damage.

2. The plaintiff must demand the damages occasioned by the injunction. The averment, that he is damaged by the stay, is the gist of the action.

This is so, although he declares in debt; because since 8 and 9 W. III. (Code, chapter 131, §17), debt on a penal bond is, in substance, the same as covenant, the demand is for damages: Br age v. Brand, 2 Wils. 377; Goodwin v. Oroide, Cowp.; Hurst v. Jennings, 5 B. & C; Perkins v. Giles, 9 Leigh; Strang v. Holmes, 7 Cowp. Hence, we may deal with the case precisely as if this were an action of covenant, and if it appears, from the declaration, that the plaintiff did not sustain any damage, then it also appears that he has no cause of action. When it appears that a cause of action does not exist, the judgment will be reversed after verdict: Boyles v. Over by, 11 Gratt,

3. The plaintiff was not damaged unless the injunction took effect: if there was no stay, there was no damage. Hence if it appears, that the injunction did not take effect, then it also appears, that he did not sustain any damage.

4. The injunction does not take effect, until a particular bond is executed. The statute is express: Code, chapter 133, §10. The precise terms of the required condition are declared; no other condition will effectuate the injunction. If the proper bond be not given, or, what is the same thing, if an improper bond is executed, the injunction does not take effect. Hence if it appears that an improper bond was executed, then it also appears, that the injunction did not take effect.

5. But we have seen:

1. If there was no damage, there was no cause of action.

2. If there was no injunction, there was no damage.

3. If the bond was defective, there was no injunction. Hence if the bond was defective, there was no cause of action.

II. A defective injunction bond cannot be treated as a common law security.

1. The proper injunction bond possesses a peculiar effect; it possesses an eccentric operation; it accomplishes an injunction; it gives vitality and efficiency to the order for a stay of proceedings; the injunction order is nugatory, until and unless the proper bond is executed.

2. Since this action and every action must proceed on the idea, that an injunction causes a stay of proceedings, therefore every action must be based on this eccentric operation; and if the bond does not possess this statutory (eccentric) effect, it does not create any liability, viz: if it be void as a statutory bond, it is void as a common law security. Herein is the distinction between an action on a defective injunction bond and an action on a defective forthcoming bond; the latter will, but the former will not create a liability.

3. Many statutory bonds possess both the statutory and a common law operation; such bonds may be good as common law securities, although void as statutory instruments, because defective, e. g.: the eccentric operation of a forthcoming bond is, that the obligee may obtain judgment by a mere motion. But the forthcoming bond also creates a common law liability, imported,.proprio vigore by the language employed. Hence, the plaintiff may either base his action on the eeeentrie effect, and obtain judgment by a mere motion, or he may treat it as a common law security, and bring debt or covenant. Again. The bond, prescribed by Code of 1819, for an administrator c. t. a. was payable to the justices of the county court; its eccentric effect was, that the legatee, a stranger, might maintain an action in his own name, whereas the familiar rule limits suit to the parties to a deed: Boss v. Milne, 12 Leigh. (This rule recently abolished: Code, p. 640). The plaintiff, (a legatee) may base his action on this statutory operation and sue in his own name, or, treating the bond as a common law security, he may sue in the name of the justices.

4. But a defective bond, viz: abond whose condition varies from the prescribed conditions, does not possess the statutory operation. A defective forthcoming bond will not support a motion: Beale v. Downman, 1 Call; Johnson v. Meriwether, 3 Call. And a defective bond by an administrator c. t. a....