Johnson v. Maryland Casualty Co.

• Decision Date: 05 April 1929
• Docket Number: No. 27091.,27091.
• Citation: 224 N.W. 700,177 Minn. 103
• Parties: JOHNSON v. MARYLAND CASUALTY CO.
• Court: Minnesota Supreme Court

224 N.W. 700

177 Minn. 103

JOHNSON v. MARYLAND CASUALTY CO.

No. 27091.

Supreme Court of Minnesota.

April 5, 1929.

Appeal from District Court, Hennepin County; E. A. Montgomery, Judge.

Action by Alfred Johnson against the Maryland Casualty Company. From an order denying its motion for a new trial, defendant appeals. Reversed.

B. H. Bowler, of Minneapolis, for appellant.

Leonard, Street & Deinard, of Minneapolis, for respondent.

STONE, J.

In this action to recover on an injunction bond, the defendant surety was denied a new trial and appeals. July 13, 1923, plaintiff sold and agreed to convey to Frank and Marie Tergeon, husband and wife, a residence property. The vendees defaulted, and the contract was canceled by statutory notice April 14, 1924. April 25 plaintiff commenced in the municipal court of Minneapolis an action of unlawful detainer against the Tergeons to secure the restitution of the premises. May 2, 1924, Marie Tergeon, one of the vendees, sued plaintiff in the district court of Hennepin county for an injunction restraining the prosecution of the action of unlawful detainer, procuring first a temporary restraining order, and then a temporary injunction. It is upon her injunction bond of $1,000, with defendant as her surety, that the present suit is brought.

The complaint alleges that the injunction suit was tried in March, 1925; that in April there was an order dismissing it; that on May 12 the motion of the plaintiff therein, Marie Tergeon, for a new trial was denied; that she thereupon appealed to this court; that her appeal was dismissed (Tergeon v. Johnson, 165 Minn. 482, 205 N. W. 888); that judgment was entered against her June 6, 1925; that an appeal was taken from the judgment; and that it was affirmed (168 Minn. 22, 209 N. W. 485). There follows an averment that the "restraining order and writ of injunction against plaintiff * * * remained in full force and effect continuously and at all times until" after the judgment had been finally affirmed here and was remanded to the district court in July, 1926. That was traversed by a general denial in the amended answer upon which the case went to trial. So the burden was upon plaintiff to prove the period during which the injunction kept him out of possession and for which in consequence he was entitled to damages under the injunction bond. But in the original answer defendant had set up affirmatively, in detail and unnecessarily, an order whereby on motion the temporary injunction was "vacated and dissolved" as of September 18, 1924. October 9, 1924, an order was made denying a motion to reinstate the injunction. But on the same date another was made which, among other things, provided "that until the disposition of this case further proceedings between the parties in the municipal court" in the forcible entry and unlawful detainer action "be stayed," and that the bond "in the injunction proceedings remain operative and in full force and effect to abide the event of this action." Thereafter on motion there were stricken from the amended answer, as sham and frivolous, the allegations of the orders of the district court just referred to. From that order no appeal was taken. Plaintiff did not press his action of unlawful detainer and so did not recover possession from the Tergeons until after the final decision of the injunction suit. The decision below allows him damages for loss of possession upon the theory that the temporary injunction remained in force during all of that period.

1. It is argued for plaintiff that, if it was error to strike the portions of the answer which were stricken it was not an error occurring at the trial, and therefore cannot now be reviewed upon an appeal from an order denying the motion for a new trial, but can be corrected only on an appeal from the judgment. City of Winona v. Minn. Ry. Const. Co., 27 Minn. 415, 6 N. W. 795, 8 N. W. 148; Manwaring v. O'Brien, 75 Minn. 542, 78 N. W. 1; Minneapolis, St. P. & S. S. M. Ry. Co. v. Home Insurance Co., 64 Minn. 61, 66 N. W. 132; Grimes v. Ericson, 94 Minn. 461, 103 N. W. 334; Melady v. South St. Paul Live Stock Exch., 142 Minn. 194, 171 N. W. 806. It is next argued that, inasmuch as the order striking out portions of the amended answer was itself appealable but not appealed from, the issues thereby determined are res judicata and cannot be reviewed on this appeal even though erroneously decided. Halvorsen v. Orinoco Mining Co., 89 Minn. 470, 95 N. W. 320; Truesdale v. Farmers' Loan & Trust Co., 67 Minn. 454, 70 N. W. 568, 64 Am. St. Rep. 430. Neither proposition is controlling. It was part of plaintiff's case, and not matter of defense to show the period during which the injunction bond was in force. The allegation of the complaint that the injunction remained in effect during the entire course of Tergeon v. Johnson, through the district court and this court, was put in issue by the general denial of the amended answer. So, in spite of the absence from the answers of the matter that had been...