Loehner v. Hill

• Citation: 17 Mo.App. 32
• Parties: A. LOEHNER, Respondent, v. BRITTON A. HILL ET AL., Appellants.
• Decision Date: 17 March 1885
• Court: Court of Appeal of Missouri (US)

17 Mo.App. 32

A. LOEHNER, Respondent,

v.BRITTON A. HILL ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Mar. 17, 1885.

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

Affirmed.

W. L. SCOTT and MCENTIRE & LOEVY, for the appellants.

E. P. JOHNSON, for the respondent.

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

That there is no liability on the part of the obligors on an injunction bond for other damages and costs than those caused by the injunction, has been frequently and uniformly decided.-- Boatmantel v. Stewart, 55 Cal. 115; Hovey v. Rubber Tip Co., 12 Abb Pr. N. S. 360; Lewis v. Leahy, 14 Mo. App. 567. The rule is also established in this state that even within the limits above stated the liabilities of the obligors upon a statutory injunction bond extend to such damages only as the court upon the dissolution of the injunction shall adjudge against them.-- Dorriss v. Carter, 67 Mo. 545.

When therefore the obligors in such a bond are sought to be held liable in any proceeding upon the bond, the party seeking to enforce the liability must affirmatively show that such liability is owing to damages or costs caused by the injunction, and which were adjudged by the court upon its dissolution.

In the cause now under consideration an injunction bond in statutory form was filed in the main case on the 11th of February, 1881, and an injunction granted temporarily. Whether the injunction thus granted was granted at the institution of the main suit, or at some subsequent stage therein, and whether the sole object of the main suit was an injunction, or whether the injunction was prayed for as mere incidental relief, does not appear by the record.

On the 10th of April, 1883, the appellant Garret S. Van Wagoner filed a motion in the cause asking the court to fix his compensation as referee therein, and on June 12, 1883, the appellants, Frank Kraft and A. L. Hawkins, filed another motion in the cause asking the court to fix their compensation for services before the referee, which motions coming on for hearing were sustained by the court. The court thereupon on the 27th day of June, 1883, made an allowance of $240.00 to Van Wagoner for his services as referee, of $170.50 to Kraft for his services as short-hand reporter, and of $33.37 to Hawkins for his services herein, and ordered that the amounts thus allowed be taxed as costs in the case, and that execution therefor issue against the plaintiff.

It nowhere appears by the record at what time the cause was referred to Van Wagoner, nor for what purpose it was referred, nor whether any proceedings whatever affecting the injunction were had before said referee. Nor does it appear on what account the allowance was made to Kraft, beyond the statement that it was “for his services as short-hand reporter herein.” Nor does it appear anywhere what the services of Hawkins were, and where they were rendered, except that they were rendered “herein.” On the 23rd day of January, 1884, the temporary injunction granted in the case was, on motion of defendants, dissolved, because plaintiff had failed to give the security for costs which the court had ordered him to give, and the whole case was on that ground dismissed. The defendants filed a motion for assessment of damages on...