Laumeier v. Sammelmann

• Decision Date: 08 December 1925
• Parties: H. H. LAUMEIER, Appellant, v. AGNES SAMMELMANN, CHARLES SAMMELMANN, and OLIVER SAMMELMANN, alias OLLIE SAMMELMANN, and MOONSHINERS NOS. 1, 2, 3, 4, 5, and 6, Defendants; AGNES SAMMELMANN and CHARLES SAMMELMANN, Respondents.
• Court: Missouri Court of Appeals

279 S.W. 249

218 Mo.App. 468

H. H. LAUMEIER, Appellant, v. AGNES SAMMELMANN, CHARLES SAMMELMANN, and OLIVER SAMMELMANN, alias OLLIE SAMMELMANN, and MOONSHINERS NOS. 1, 2, 3, 4, 5, and 6, Defendants;

AGNES SAMMELMANN and CHARLES SAMMELMANN, Respondents.

Court of Appeals of Missouri, St. Louis

December 8, 1925

Appeal from the Circuit Court of St. Charles County.--Hon. Edgar B Woolfolk, Judge.

AFFIRMED.

Judgment affirmed.

Laughlin Frumberg, Blodgett & Russell for appellant.

(1) A temporary restraining order expires by limitation of its own terms, and counsel fees and expenses of litigation cannot be allowed as damages on a bond given to procure such order when the restraining order is not dissolved by the procurement of the defendants but expires by reason of its own limitations. 1 High on Injunctions (4 Ed.) 3; 1 Joyce on Injunctions, sec. 111; 32 C. J. 28; 14 R. C. L. 306; 2 High on Injunctions (4 Ed.), sec. 1692; Kittle v. DeLamater, 7 Nebr. 70; White Pine Lumber Co. v. Aetna Indemnity Co., 42 Wash. 569; Houghton v. Cortelyou, 208 U.S. 149, 52 L.Ed. 432. (2) Counsel fees and expenses of litigation cannot be allowed unless the legal services were rendered in procuring a dissolution of the injunction. Buford v. Packet Co., 3 Mo.App. 159; Neiser v. Thomas, 46 Mo.App. 47. (3) Damages cannot be assessed when defendants are restrained from doing something they have no legal right to do. White Pine Lumber Co. v. Aetna Indemnity Co., 42 Wash. 569; Guthrie v. Beithan, 25 Idaho 706; Parks v. O'Connor, 70 Tex. 377. (4) The obligations of the principal and surety in an injunction are joint as to all obligees, and no assessment of damages can be had on the motion of less than the whole number of obligees. Rainey v. Smiser, 28 Mo. 310; Dewey v. Casey, 60 Mo. 224; Henry v. Mt. Pleasant Township, 70 Mo. 500; Ryan v. Riddle, 78 Mo. 521; Ohnsorg v. Turner, 33 Mo.App. 486; Jones v. Mastin, 60 Mo.App. 570; Slaughter v. Davenport, 151 Mo. 26.

Emil P. Rosenberger for respondents.

(1) An appellate court is not permitted to review matters of exception or touching the merits of the cause at the trial unless the matters were first brought to the attention of the trial court by a motion for a new trial. State v. Woodring, 135 Mo.App. 652, 116 S.W. 449; State v. Burdett, 145 Mo. 674, 47 S.W. 796; Perringer v. Unknown Heirs of Raub, 254 S.W. 703. (2) (a) Where a motion for a new trial is not filed within four days after rendition of verdict or judgment no matters of exception are open to review in this court. Sec. 1456, R. S. 1919; St. Joseph v. Robinson, 125 Mo. 1, 28 S.W. 166; Long v. Hawkins, 178 Mo. 103, 77 S.W. 77. (b) Where the abstract of the record fails to show that the motion for a new trial was filed within four days after trial, review will be limited to the record proper, and if the record proper is free from error judgment must be affirmed. Hall v. Hall et al., 194 S.W. 260; Tracy v. Tracy, 201 S.W. 903; Pennewell v. Pennewell, 204 S.W. 183. (3) The place for statement of the filing of a motion for a new trial is in the record proper, and where a recital therein is contradicted by that in the bill of exceptions the latter must give way. Jones v. Marblehead Lime Co., 128 Mo.App. 345, 107 S.W. 420; Loyd v. Grady, 180 S.W. 1032; Newell, Public Admr., v. Edom, 242 S.W. 901. (4) Damages are allowable not only to the party enjoined, but to anyone interested in the subject-matter. R. S. 1919, sec. 1957; Helmkamp v. Wood, 85 Mo.App. 227. (5) "Temporary restraining order" and "temporary injunction" mean the same. Akin v. Rice, 137 Mo.App. 147, 117 S.W. 655. (6) Where two motions for assessment of damages on an injunction bond are filed by different defendants at different times both should be heard at one time and treated as one motion. Gast Bank Note & Lithographing Co. v. Fennimore Ass'n, 79 Mo.App. 612. (7) The evident intention of section 1957, Revised Statutes 1919, is to extend the operation of the bond so as to protect all parties interested in the subject-matter enjoined against damages growing out of the injunction, and this section necessarily confers on anyone so injured a separate or independent right to seek redress on the bond. Helmkamp v. Wood, 85 Mo.App. 227; Albers Com. Co. v. Spencer, 139 S.W. 321, 236 Mo. 645; Albers Com. Co. v. Spencer, 183 Mo.App. 662, 167 S.W. 1056. (8) Damages recoverable on an injunction bond include all expenses incurred by defendants, including payment of, or incurring liability for, attorney's fees in getting rid of the injunction.

SUTTON, C. Daues, P. J., and Becker, and Nipper, JJ., concur.

OPINION

SUTTON, C.--

This is a proceeding, instituted in the circuit court of St. Charles county, for the assessment of damages on an injunction bond. The proceeding was instituted by two motions filed in the injunction suit. One of these motions was filed by respondent Agnes Sammelmann alone, and the other by both respondents jointly. The motion of Agnes Sammelmann was filed November 26, at the October term, 1923, and the joint motion of both respondents was filed March 21, at the February term, 1924. The motions were consolidated and tried together as one motion.

The motions allege in substance that on the 2nd day of November, 1923, said court, on plaintiff's application, granted and issued in said cause a temporary restraining order against defendants Agnes Sammelmann and Charles Sammelmann, as well as the other defendants named in said suit, restraining and enjoining said defendants from committing and continuing certain alleged acts fully set forth in said temporary restraining order; that the said temporary restraining order was conditioned that the plaintiff execute and file an injunction bond in the penal sum of five hundred dollars with the clerk of said court conditioned as by law required; that the plaintiff did execute such bond which was duly approved by said court, said bond having been executed by the plaintiff and by Ben H. Emmons as surety; that after said temporary restraining order had been issued a preliminary hearing was had by said court on the 26th day of November, 1923, to determine whether said temporary restraining order should be dissolved or continued in effect, and that upon such preliminary hearing said temporary injunction or restraining order was dissolved as to the defendant Agnes Sammelmann, but was not dissolved as to the defendant Charles Sammelmann, but was ordered continued in effect pending a final hearing.

In addition to these allegations of the motions, the motion of Agnes Sammelmann alleges that by reason of the issuance of the temporary restraining order, or temporary injunction, it became necessary for her to consult with and employ attorneys to represent her at said hearing, and that she was put to a large expense in employing attorneys to defend and represent her; that she has paid, and has become obligated to pay, her attorneys for representing her in said cause and matter and at said hearing, the sum of two hundred and fifty dollars for which plaintiff and the surety, Ben H. Emmons, are liable to her under the terms and conditions of the aforesaid injunction bond. And the joint motion of Agnes Sammelmann and Charles Sammelmann alleges that at the March term, 1924, of said court, a final hearing was had and upon said hearing said temporary injunction theretofore issued was dissolved as to all of the defendants except Oliver Sammelmann; that defendants Agnes Sammelmann and Charles Sammelmann have paid out and incurred liabilities for attorney fees in the sum of seven hundred dollars for legal services rendered them by attorneys and that the services of said attorneys were necessary in the defense of said defendants, and that the charges made by said attorneys are reasonable; that in addition thereto defendants lost much valuable time in the defense of said suit, to their damage in the sum of two hundred dollars; and that they paid out the sum of fifty dollars for other designated expenses necessary in order to properly make their defense.

On June 23, at the May term of said court, 1924, trial was had upon said motions before the court, without a jury, and at the conclusion of the testimony therein the matter was taken under advisement, and on July 30, at said May term of said court, the court rendered judgment in favor of respondents and against appellant upon said motions, which said judgment, omitting caption, is as follows:

"And now on this July 30, 1924, again come the parties hereto, the plaintiff and the defendants Agnes Sammelmann and Charles Sammelmann, by their attorneys, and the court having heretofore heard evidence and taken under advisement as submitted, the motion of defendant Agnes Sammelmann filed on November 26, 1923, for the assessment of damages on the injunction bond, and the motion of the defendants Agnes Sammelmann and Charles Sammelmann filed March 21, 1924, for the assessment of damages on the injunction bond, and the evidence on both motions having been heard at the time, and said motions having been at the time of the hearing by the court consolidated and treated as one motion, the court doth now announce its finding in favor of the defendants and against the plaintiff on the injunction bond given, and the court makes an allowance to the defendants Agnes Sammelmann and Charles Sammelmann for their attorney fee in the sum of two hundred and fifty dollars, and a further sum of seventy-five dollars for their loss of time and reasonable expenses connected with the hearing of the temporary restraining order.

"Wherefore it is ordered adjudged and decreed by the court that the defendants' damages on the injunction bond given by the plaintiff herein be assessed at the sum of $ 325, and judgment is accordingly rendered against ...