Loehner v. Hill

• Decision Date: 27 October 1885
• Parties: AUGUST LOEHNER ET AL., Appellants, v. B. A. HILL ET AL., Respondents.
• Court: Missouri Court of Appeals

19 Mo.App. 141

AUGUST LOEHNER ET AL., Appellants,

v.B. A. HILL ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Oct. 27, 1885.

APPEAL from the St. Louis Circuit Court, G. W. LUBKE, Judge.

Affirmed.

E. P. JOHNSON, for the appellants: Damages must be assessed upon the dissolution of the injunction, and not long after the dismissal of the bill. Rev. Stat., sect. 2712; Dorriss v. Carter, 67 Mo. 544. The injunction was merely auxiliary to the main action, and no motion was made to dissolve it until the final disposition of the cause; therefore, not even a nominal attorney's fee was allowable, and no other damages were attempted to be proved. Bustamente v. Stewart, 55 Cal. 115; McDonald v. James, 38 Superior Ct. (N. Y. 6 Jones & Spencer) 76; Hovey v. Rubber Tip Pencil Co., 50 N. Y. 335; Andrews v. Glenville Woollen Co., 50 N. Y. 282; Carroll Co. v. Iowa R. R. Land Co., 53 Iowa 685; Allport v. Kelley, 2 Mont. 343; Rev. Stat., sects. 2717-18.

G. M. STEWART, for the respondents: The proceeding on the motion to assess the damages was for the purpose of ascertaining the amount of the damages. This was essential before the surety could be made liable at all. Dorriss v. Carter, 67 Mo. 544, and cases cited. To this proceeding the surety was not and could not be a party, and he is conclusively bound by that judgment. High, Inj. (2 Ed.) sect. 1669; Lathrop v. Southworth, 5 Mich. 436. Damages on the bond followed as a matter of course upon the dismissal of the bill and the dissolution of the injunction. High, Inj. (2 Ed.) sect. 1670.ROMBAUER, J., delivered the opinion of the court.

Upon trial of a motion to assess damages on an injunction bond, against the principal and surety, the jury assessed the damages at $1,100. Of this amount, the defendants upon suggestion of the court, remitted $550, and judgment was entered in their favor for the residue. From this judgment both the principal and the surety now prosecute this appeal.

The respondents present the cause on a theory as if the surety alone had appealed, and contend that he can not be heard in this court on any question affecting solely the measure of damages adjudged. This argument is based on a misapprehension of the record. As both appeals are before us, the surety is not precluded from urging in this court any consideration for the reversal of the judgment which may properly arise upon the entire record. Moreover, we are inclined to hold on the authority of Wash v. Allen (50 Mo. 181), that when a judgment is rendered against a surety on an injunction bond, upon motion or otherwise, he becomes a party to the record within the meaning of section 3711, Revised Statutes, which grants to every person, aggrieved by any final judgment or decision of any circuit court in any civil cause, an appeal to the court having appellate jurisdiction, and as such has an independent right of appeal.

The testimony upon the trial of the motion, as far as it affects the merits of the appeal now before us, consisted of the reading in evidence of the injunction bond and restraining order, and giving evidence of the value of legal services of counsel for the defendants in the case.

The petition upon which the restraining order was granted is not preserved in the record, nor does it apappear whether the injunction granted, and dissolved on dismissal of the suit, was the only object of the petition, or whether it was merely incidental to other...