Lamb v. Shaw

• Decision Date: 20 June 1890
• Citation: 45 N.W. 1134,43 Minn. 507
• Parties: Henry Lamb v. William B. Shaw and others
• Court: Minnesota Supreme Court

45 N.W. 1134

43 Minn. 507

Henry Lamb v. William B. Shaw and others

Supreme Court of Minnesota

June 20, 1890

Appeal by plaintiff from an order of the district court for Ramsey county, Vilas, J., presiding, sustaining a demurrer to the complaint.

Order affirmed.

Johns Michael & Johns, for appellant.

C. M MacLaren, for respondents.

OPINION

Vanderburgh, J.

This action is brought to recover damages upon an injunction bond being, as plaintiff claims, the amount of the expenses incurred by him for counsel fees, upon applications to set aside the preliminary injunction issued by the court in an action brought by defendant Shaw against this plaintiff, to restrain the enforcement of a certain judgment previously recovered by the plaintiff against him and others, and upon the trial of the principal action. The applications were denied, and the injunction retained until the trial, when the action was dismissed upon the motion of this plaintiff, upon the default of the defendant Shaw to appear and prosecute the same. The temporary injunction is a provisional remedy, which may be allowed upon a proper showing before trial, by the court, pending the principal action, "when it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief * * * consists in restraining the commission or continuance of some act the commission or continuance of which during the litigation would produce injury to the plaintiff," etc. Gen. St 1878, c. 66, § 200. The substance of the complaint in the injunction suit is not fully disclosed by the complaint in this action, but we must presume that it stated substantive facts sufficient on its face to warrant the relief asked, and which would be the proper subject of litigation between the parties. If, as would seem to be the case, the question involved was the validity of a judgment upon which the execution sale was sought to be restrained, the determination of that question would not necessarily cease to be important or material to the plaintiff's rights in that suit, though the sale was not temporarily restrained, and he might be embarrassed and prejudiced by the proceedings. Presumptively, therefore, the litigation in the principal action would proceed and be determined on its merits, though no temporary injunction had been issued. We must presume, also, that the motions to dissolve the injunction, upon the record before the court, were properly denied, and that the...