Konta v. St. Louis Stock Exchange

• Decision Date: 24 October 1910
• Citation: 150 Mo. App. 617,131 S.W. 380
• Parties: KONTA v. ST. LOUIS STOCK EXCHANGE et al.
• Court: Missouri Court of Appeals

131 S.W. 380

150 Mo. App. 617

KONTA v. ST. LOUIS STOCK EXCHANGE et al.

St. Louis of Appeals. Missouri.

October 24, 1910.

Rehearing Denied November 10, 1910.

1. MOTIONS (§ 19) — JURISDICTION OVER PERSON — NOTICE.

A party over whom a court has obtained jurisdiction must take notice of all proceedings in the cause until final judgment, but, after judgment, he is not before the court, and must have notice of any subsequent proceeding affecting his rights.

2. INJUNCTION (§ 241) — INJUNCTION BOND— NOTICE TO ASSESS DAMAGES.

A judgment dissolving an injunction is final, and a judgment on the injunction bond cannot thereafter be rendered without notice to plaintiff, which affords him an opportunity to be heard.

3. INJUNCTION (§ 241) — INJUNCTION BOND — SURETY.

A surety in an injunction bond is a party to the record so as to authorize a judgment against him for damages on the breach of the bond, and, where the plaintiff in the injunction suit, who is also the principal in the bond, has due notice of the proceedings to assess damages on dissolution of the injunction, a judgment may be given against the surety without notice to him.

4. INJUNCTION (§ 241) — INJUNCTION BOND — LIABILITY OF SURETY.

Under Rev. St. 1899, § 3637 (Ann. St. 1906, p. 2050), providing that an injunction bond shall be conditioned that plaintiff will abide the decision and pay damages adjudged against him on dissolution of the injunction, the liability of a surety on an injunction bond does not attach on dissolution of the injunction, unless there is an adjudication of the damages against and a nonpayment thereof by plaintiff in the suit, and judgment may not be given for damages against the surety, unless a judgment is had against plaintiff in the suit.

5. ATTORNEY AND CLIENT (§ 104) — NOTICE ON ATTORNEY — EFFECT.

Rev. St. 1899, § 586 (Ann. St. 1906, p. 609), authorizing service of notice on the party or his attorney, does not authorize service of notice on an attorney of a motion for judgment for damages after final judgment, and the service of such a notice on the attorney is ineffectual in the absence of evidence indicating the continuance of the relation of attorney and client.

6. ATTORNEY AND CLIENT (§ 104) — NOTICE ON ATTORNEY — EFFECT.

The common-law rule that notice to an attorney of record is notice to his client applies only to notices arising in the progress of a cause, or as to other matters in which the relation of attorney and client exists when notice is given, and one relying on notice to an attorney after final judgment must affirmatively show that the attorney still represents the client.

7. INJUNCTION (§ 241) — BOND — ASSESSMENT OF DAMAGES—NOTICE.

The filing of a notice to assess damages on an injunction bond during the term of the court in which judgment dissolving the injunction was rendered, and before motion for a new trial, does not dispense with notice of assessment of damages, at a subsequent term.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by Alexander Konta against the St. Louis Stock Exchange and others, in which Joseph A. Duffy became a surety on the injunction bond given by plaintiff. From a judgment on the injunction bond rendered after final judgment dissolving the injunction, the surety appeals. Reversed and remanded.

E. W. Banister, for appellant. Robert & Robert, for respondents.

NORTONI, J.

This is a proceeding for an assessment of damages against plaintiff and his surety on an injunction bond. The jury awarded defendant a recovery in the amount of $500, and the surety on the bond prosecutes the appeal.

It appears that plaintiff Konta sued out an injunction against defendant in 1902, and Joseph A. Duffy became surety on the injunction bond. On a hearing final judgment was given by which the injunction was dissolved, and defendant thereupon, during the same term of court, filed its motion for an assessment of damages on plaintiff's bond in accordance with the provisions of our statute (section 3639, Rev. St. 1899 [Ann. St. 1906, p. 2052]), but this motion was not disposed of for several years thereafter because of the fact that plaintiff prosecuted an appeal in the injunction suit to the Supreme Court. The Supreme Court afterwards affirmed the judgment of the circuit court by which the injunction was dissolved, and in due time thereafter the motion for an assessment of damages on the bond was set down on the docket of the circuit court for consideration. Plaintiff Konta was not personally notified, however, of the fact that the motion to assess damages against himself and the surety on the bond would be taken up. It is said that Konta no longer resides within the jurisdiction of the court and the notice was therefore served upon one of his attorneys who had signed the petition in the injunction proceeding.

The surety alone prosecutes the present appeal, and urges that no judgment may be given against him in this summary proceeding on the bond, for the reason no breach thereof has been judicially declared against plaintiff Konta, the principal therein. The argument predicates on the fact that Konta was not personally notified of the present proceeding, and it is said notice served upon his attorney of record in the injunction suit is insufficient in the circumstances of the case. We believe the argument to be sound for the reason that such after-judgment motions as that involved here are not to be considered by the court in the absence of notice to the adverse party. It is the accepted rule that a party over whom a court has obtained jurisdiction must take notice of all proceedings in the cause until final judgment is rendered therein. But after judgment he is not regarded as being before the court, and should have notice of any subsequent proceedings which affect his rights. Roberts v. St. Louis Merchants' Land, etc., Co., 126 Mo. 460, 469, 29 S. W. 584; Smith v. Kander, 85 Mo. App. 33; Jackson v. Fulton, 87 Mo. App. 228, 238; Laun v. Ponath, 91 Mo. App. 271. And, of course, the rule obtains with full force as to a plaintiff, who is the principal obligor in an injunction bond. Hoffelmann v. Franke, 96 Mo. 533, 10 S. W. 45; Wabash R. Co. v. Sweet, 110 Mo. App. 100, 84 S. W. 95. The judgment dissolving the injunction in the present instance was final in every respect as it disposed of the entire cause on its merits as well. For its affirmance, see Konta v. St. Louis Stock Exchange, 189 Mo. 26, 87 S. W. 969.

There can be no doubt that by voluntarily executing the bond the surety becomes a party to the record so as to authorize the court to thereafter give a judgment against him for damages on the breach of the bond. Loehner v. Hill, 19 Mo. App. 141; Fears v. Riley, 147 Mo. 453, 48 S. W. 828; St. Louis Zinc Co. v. Hesselmeyer, 50 Mo. 180; Nolan v. Johns, 108 Mo. 431, 18 S. W. 1107. And it has been decided, too, that, if the plaintiff in the injunction suit and principal in the bond has due notice of the proceedings to assess damages thereon, a judgment may be given against the surety as well without notice to him, for the reason that by voluntarily becoming a party to the record he consents to be concluded by such proceedings as are had with due notice against his principal. Sutliff v. Montgomery, 115 Mo. App. 592, 92 S. W. 515. For a ruling to the same effect as to sureties on a cost bond without notice to them, see Schawacker v. McLaughlin, 139 Mo. 333, 40 S. W. 935. But, be this as it may, the rule is established in this state to the effect...