Joplin State Bank v. Heaton

• Decision Date: 18 November 1915
• Docket Number: No. 1566.,1566.
• Citation: 180 S.W. 19
• Parties: JOPLIN STATE BANK v. HEATON et al.
• Court: Missouri Court of Appeals

180 S.W. 19

JOPLIN STATE BANK v. HEATON et al.

No. 1566.

Springfield Court of Appeals, Missouri.

November 18, 1915.

Error to Circuit Court, Camden County; C. H. Skinker, Judge.

Action by the Joplin State Bank against Georgia Heaton and W. T. Salsman. Judgment for defendants, and the Bank brings error. Reversed.

R. M. Sheppard, of Joplin, for plaintiff in error. T. B. Waters, of Sedalia, and I. W. Mayfield & Son, of Lebanon, for defendants in error.

STURGIS, J.

This suit was originally one for an injunction. A preliminary injunction was granted, and thereafter defendant filed a motion to dissolve the same, for reasons not now material, and concluded with this prayer:

"Wherefore said party prays for said dissolution and for all proper damages to which, in law or in equity, she may be entitled, with general relief."

On a hearing this motion was sustained, and the following judgment rendered: "Now comes the defendants by their attorneys and file motion to dissolve the temporary injunction, and the court, being fully advised in the matter, doth sustain said motion.

"It is therefore ordered by the court that the temporary writ of injunction against the defendants be dissolved and held for naught, and that the defendants' damages be assessed at the sum of $32.50.

"It is further ordered that the defendants have and recover of the plaintiff, the said sum of $32.50, together with all costs herein, and that execution issue therefor."

Thereafter, to wit, on May 6, 1915, a writ of error was issued by this court upon the petition of the plaintiff in error, directed to the clerk of the circuit court of Camden county, Mo., requiring said clerk to transmit a transcript of all records in said cause to this court. This constitutes the entire record presenting the questions which are for review in this court.

The errors now complained of are that it was error to assess damages against the plaintiff on the dissolution of the injunction without filing a motion for that purpose and giving notice of same to plaintiff, and that the record does not show a waiver of a jury in assessing the damages.

It is of very doubtful validity to embody In a motion to dissolve an injunction a further motion or prayer for the assessment of damages. The right to have damages assessed does not accrue until the injunction is dissolved. The dissolution of the injunction its a final judgment. The filing and hearing of a motion to assess damages on an injunction bond is a proceeding in the case after final judgment. Konta v. Stock Exchange, 150 Mo. App. 617, 622, 131 S. W. 380, 381. In this case it is stated that:

"A recovery on such an after-judgment motion may not be allowed against the plaintiff in the injunction suit without due notice affording him an opportunity to be heard; for the rule as to constructive notice ceased to act when the final judgment dissolving the injunction was given."

Defendant contends that damages may be assessed by the court without any motion for that purpose, and cites Sutliff v. Montgomery, 115 Mo. App. 592, 596, 92 S. W. 515, and Brownlee v. Fenwick, 103 Mo. 420, 430, 15 S. W. 611, but what is there held is that a motion to dissolve the injunction is not a prerequisite to the right to have damages assessed. In both cases motions to assess damages were filed and raised the questions then at issue. It is also held that the motion to assess...