LeWis v. LeAhey

• Decision Date: 02 January 1884
• Citation: LeWis v. LeAhey, 14 Mo.App. 564 (Mo. App. 1884)
• Parties: M. D. LEWIS, ADMINISTRATOR, Appellant, v. JAMES LEAHEY, ET AL., Respondents.
• Court: Missouri Court of Appeals

14 Mo.App. 564

M. D. LEWIS, ADMINISTRATOR, Appellant,

v.JAMES LEAHEY, ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jan. 2, 1884.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and remanded.

HERMANN & REYBURN, for the appellant.

E. A. B. GARECHÉ, for the respondents.

BAKEWELL, J., delivered the opinion of the court.

The original proceeding here, was a bill in equity to compel the execution of a mortgage; the plaintiff also asked incidental relief by injunction, to preserve the status of the parties pending the litigation.A preliminary injunction was granted; but, on the trial, the court held, that the bill stated no cause of action, sustained a general objection to all evidence offered in support of it, and dismissed the bill.On appeal to this court, this judgment was reversed and the cause remanded.Leahey v. Leahey,11 Mo. App. 413.When the case went back, by consent of parties, the cause was submitted to the court upon the motion to dissolve the injunction and upon the merits; and the court, on this hearing, found for defendants, dissolved the temporary injunction, and dismissed the bill.On hearing upon the motion to assess damage, the jury assessed damages at $250, and judgment was rendered against plaintiff and Robertson, the appellant here, who was the surety on the injunction bond, for that sum and costs.Robertson satisfied the judgment as to damages; and a fee-bill was issued against him for all the costs.Robertson filed a motion to re-tax the costs, which was overruled; and, from this action of the court declaring him liable as a surety on the injunction bond for all the costs of the proceeding, Robertson appeals.

In this case the injunction was merely an incident to the main suit.The damages to be recovered from the surety are not to include anything occasioned by the suit independently of the injunction; and so much of the taxable costs only ought to be assessed as damages against the surety on the injunction bond as were necessarily incurred in procuring the dissolution of the injunction.High on Inj., sects. 1663,1667.

We think that the costs could neither be increased or diminished by the fact that the hearing on the motion to dissolve and the hearing on the merits were one and the same trial.There is nothing to show that the costs were in any way increased by hearing the merits when the motion was heard, or that any witness was summoned who did not testify as to those matters which were necessarily passed upon in determining the motion to dissolve.It is probable that the motion to dissolve could not be passed upon properly without an inquiry into the merits; and the statute(Rev. Stats., sect. 2717) provides, that, on hearing of the motion to dissolve, the parties may introduce testimony to support the petition and answer.

It is contended by appellant that the injunction was dissolved at the dismissal of the bill, and never revived, and that, for this reason, the surety is liable for no costs after the first appeal.It is true that in England and in many of the states of the union, it is held that an appeal does not revive the injunction, and that, after an order dissolving the injunction, there is no existing injunction pending to the appeal from that order, though bond be given on the appeal.But we think it has been generally recognized by the profession in...