Linneman v. Hawkins

• Decision Date: 05 May 1930
• Docket Number: No. 16727.,16727.
• Citation: 27 S.W.2d 1046
• Parties: LINNEMAN v. HAWKINS et al.
• Court: Missouri Court of Appeals

27 S.W.2d 1046

LINNEMAN v. HAWKINS et al.

No. 16727.

Kansas City Court of Appeals. Missouri.

May 5, 1930.

Appeal from Circuit Court, Saline County; John A. Rich, Special Judge.

"Not to be officially published."

Action by Laura Linneman and another against W. R. Hawkins and others. From a judgment for E. W. Henry, defendant, N. F. Frazier, surety, appeals.

Affirmed.

James & James, of Marshall, for appellant.

W. H. Meschede and R. D. Johnson, both of Marshall, for respondents.

BARNETT, C.

This is an appeal from an assessment of damages under the terms of an injunction bond. From the abstract of record it appears that Laura Linneman and Fred Linneman brought suit against E. W. Henry wherein they prayed that a deed of trust be adjudged null and void and not a lien upon real and personal property therein described; that the deed of trust be canceled and a $3,000 note secured thereby be adjudged null and void, and that defendant be perpetually enjoined from proceeding under the deed of trust to foreclose, sell, or take possession of the real estate, or any part thereof, and for such other and further relief as to the court might seem just and proper. The defendant was alleged to be the holder of the note. He filed an answer and cross-bill wherein he prayed that the plaintiff's bill be dismissed; that the indebtedness be declared valid; that the deed of trust be declared a valid and binding lien; that the lien be foreclosed and the real and personal property be sold, and for all further relief to which the defendant might be entitled, and which to the court might seem meet and proper. Plaintiffs filed a reply. In that case the circuit court entered a decree for the plaintiffs from which the defendant appealed. The cause was reversed and remanded, with directions by the Supreme Court (316 Mo. 674, 291 S. W. 109), and thereafter, pursuant to the mandate of the appellate court, the trial court entered a decree foreclosing the deed of trust and directing a sale of the property therein described.

After the petition was filed, and before final hearing of the above case in which Henry was the sole defendant, the court granted a preliminary injunction in the case of Laura Linneman and Fred Linneman v. W. R. Hawkins, O. N. Chipley, and E. W. Henry. The order recited that upon reading the petition of plaintiffs it appeared from the facts stated therein that plaintiffs were entitled to the relief prayed for, and it was ordered that a temporary injunction be and the same was granted enjoining defendants and his agents and servants from selling or attempting to sell under and by virtue of the deed of trust executed by the plaintiffs to defendant W. R. Hawkins, as trustee, and E. W. Henry, the property therein described, during the pendency of the suit brought by Laura Linneman and Fred Linneman against the defendant E. W. Henry, upon condition that plaintiffs file a bond for $4,000 conditioned as required by law, and thereupon the plaintiffs filed such a bond signed by themselves as principals and by N. F. Frazier, surety, which bond was approved by the court. The bond recited that upon the application of Laura Linneman and Fred Linneman a temporary injunction had been granted against W. R. Hawkins, O. N. Chipley, and E. W. Henry, and the condition of the bond was as follows:

"Now therefore, if said Laura Linneman and Fred Linneman shall and will abide by the decision which shall be made in the cause pending between plaintiffs and the said E. W. Henry, in the Circuit Court of Saline County, Missouri, and pay all sums of money, damages and costs that shall be adjudged against them if the said injunction shall be dissolved, then this obligation shall be void, otherwise to remain in full force."

This temporary injunction was granted on June 1, 1922. The abstract of record discloses that on the 8th day of February, 1922, in the case of Laura Linneman and Fred Linneman v. W. R. Hawkins, O. N. Chipley, and E. W. Henry, the trial court granted a temporary injunction in which it was recited that it appeared that plaintiffs were entitled to the relief prayed for, and it was ordered that a temporary injunction be granted enjoining the defendants, their agents, and servants from selling or attempting to sell under and by virtue of the deed of trust executed by plaintiffs to W. R. Hawkins, as trustee, and the defendant E. W. Henry, the property described in the petition and described in the deed of trust "at any time prior to the day which shall be set for the trial of the suit brought by plaintiffs against the defendant E. W. Henry, at the January term 1922 of the circuit court," upon condition that plaintiffs file a bond in the sum of $2,500, conditioned as required by law. The bond was filed with N. F. Frazier, as surety, and was approved.

The abstract of record proper begins with a recitation that on the 7th day of May, 1927, the defendant E. W. Henry filed a petition in the circuit court of Saline county. This petition is set out verbatim, and it recites that on the 10th day of December, 1921, the plaintiffs, Laura Linneman and Fred Linneman, brought suit against E. W. Henry to obtain a decree adjudging the deed of trust and the notes secured thereby null and void, and that E. W. Henry be perpetually restrained and enjoined from proceeding under the deed of trust to foreclose, sell, or take possession of the property described therein; that W. R. Hawkins was the trustee named in said deed of trust, and O. N. Chipley was the sheriff named as the successor of W. R. Hawkins in the event Hawkins for any reason failed to act as trustee; that on June 1, 1922, the plaintiffs obtained a temporary injunction enjoining the defendants, and each of them, their agents and servants, from selling or attempting to sell under and by virtue of the deed of trust the property described therein during the pendency of the suit brought by plaintiffs against E. W. Henry, upon filing a bond in the sum of $4,000, conditioned as required by law; that the bond was given with N. F. Frazier, as surety, which bond was approved by the court. The terms of the bond were pleaded, and it is alleged that on the 7th day of May, 1927, a final decree was entered finding the issues in favor of E. W. Henry and against the plaintiff, and dissolving the temporary injunction. It is alleged that the defendant incurred attorney's fees in procuring the dissolution of the temporary injunction in the sum of $2,000; that he had been damaged by loss of time and expenditure of money in attending court in the sum of $200, and in the further sum of $695.79 in necessary expenses and costs in prosecuting the case to a final determination and in securing the dissolution of the injunction. The answer of N. F. Frazier, surety, admits the execution of the bond and alleges that a petition was filed on the 8th day of February, 1922, praying for an injunction restraining W. R. Hawkins, O. N. Chipley, and E. W. Henry from proceeding under the deed of trust, which injunction was granted, but that the bond was to indemnify E. W. Henry from any damages sustained by him from the injunction; that such injunction had never been dissolved, but was still in force and effect; that on June 1, 1922, while such injunction was in full force and effect, the defendants were enjoined from proceeding under the deed of trust, which latter injunction was to the same effect as the former, and was therefore ineffective, and did not in any manner restrain them from doing any act or thing that they were not already restrained from doing by the previous injunction. It was also alleged that no liability could be incurred by the surety, except for such damages as are actually and necessarily incurred in the dissolution of the injunction granted by the court; that the granting of the injunction was merely ancillary to the main suit, and not a part thereof.

The defendant E. W. Henry introduced evidence which showed that he had incurred expenses largely in excess of the amount of the damages assessed by the jury in defending the case of Laura Linneman and Fred Linneman, plaintiffs, v. E. W. Henry, defendant, but he was not able to show that such expenses were incurred in a successful effort to dissolve the injunction, except in so far as the final decree in his favor upon the merits had the effect of dissolving the injunction. No motion was ever made to dissolve either of the temporary injunctions. The motion to assess damages was tried with a jury, and a verdict was rendered against the plaintiffs Laura Linneman and Fred Linneman and N. F. Frazier, surety, in the sum of $500, judgment was rendered accordingly, a motion for new trial was overruled, and N. F. Frazier has appealed.

Opinion.

Appellant claims that no injunction bond was given in the case of Laura Linneman and Fred Linneman v. E. W. Henry; that the bond was given in a different suit, to wit, the suit of Laura Linneman and Fred Linneman v. E. W. Henry, W. R. Hawkins, and O. N. Chipley, and for that reason the trial of the original suit was not tantamount to a trial in which the injunction was granted. It is said that the granting of the injunction was merely ancillary to the original suit; that the main subject of the suit was one thing and the issuance of the injunction was entirely a different thing, merely ancillary to the main suit; that it therefore...