Mica Insulator Co. v. Commercial Mica Co.

• Decision Date: 18 December 1907
• Docket Number: 28,284.
• Parties: MICA INSULATOR CO. v. COMMERCIAL MICA CO.
• Court: U.S. District Court — Northern District of Illinois

157 F. 92

MICA INSULATOR CO. v. COMMERCIAL MICA CO.

No. 28,284.

United States Circuit Court, N.D. Illinois, Eastern Division.

December 18, 1907

Kenyon & Kenyon (Charles A. Brown, of counsel), for complainant.

William R. Rummler (Henry D. Beam, of counsel), for defendant.

KOHLSAAT Circuit Judge.

Complainant was granted a preliminary injunction herein on July 17, 1906. On the next day defendant moved the court for an order requiring complainant to give an injunction bond in the premises, which was denied by the court. On the same day complainant's counsel being present, the court entered an order as follows, viz.:

'It is ordered that the order for preliminary injunction entered herein on the 17th instant, be, and the same is, hereby modified by adding the following, to wit: It is further ordered that the complainant pay the defendant such resulting damages as it may sustain in case it be finally decided that said injunction ought not to have been granted.'

No appeal was taken by either party to the granting of the temporary injunction, nor to the entry of said above recited modifying order. Ten days thereafter complainant took out the writ. Afterwards such proceedings were had that on the 8th day of November, 1907, the court entered an order dissolving the preliminary injunction and dismissing the bill for want of equity at complainant's costs, and, as a part of the order, decreed as follows, viz.:

'And the question of damages, if any, resulting to the defendant from the wrongful granting of the said injunction, is hereby reserved for the further order of the court herein.'

The cause is now before the court on the motion of complainant to strike said last cited clause from the decree on the grounds (1) that by reason of said clause said decree is not an appealable order; (2) that, no injunction bond having been taken, under the rule laid down for federal procedure in such cases, no damages can be assessed under the facts in this case. These questions will be considered in their inverse order. In Russell v. Farley, 105 U.S. 433, 26 L.R.A. 1060, it is held:

'The question then arises whether the Circuit Courts have any power to make a decree on the subject of damages arising from an injunction, where an injunction bond has been required. Where no bond or undertaking has been required, it is clear that the court has no power to award damages sustained by either party in consequence of the litigation, except by making such a decree in reference to the costs of the suit as it may deem equitable and just. Has it any such power, or any power over the subject where such a bond has been given? For a solution of this question, it will be proper to advert briefly to the history and object of this kind of obligations.'

In Meyers v. Block, 120 U.S. 206, 7 Sup.Ct. 525, 30 L.Ed. 642, the following language is used:

'By the law of Louisiana damages may be recovered for suing out an injunction without just cause, independently of a bond. Florance v. Nixon, 3 La. 291. But this cannot be done in the United States courts. Without a bond no damages can be recovered at all. Without a bond for the payment of damages or other obligation of like effect, a party against whom an injunction wrongfully issues can recover nothing but costs, unless he can make out a case of malicious prosecution. It is only by reason of the bond and upon the bond, that he can recover anything.'

In Tobey Furniture Company v. Colby (C.C.) 35 F. 592, Judge Biodgett said:

'The power of courts of equity, on application for a preliminary injunction pendente lite to require from the complainant a bond to indemnify the defendant sought to be enjoined, as a condition on which such injunction is granted, is too well established to be subject to question at this day. 2 Daniell, Ch.Pr. 1666, 2 High, Inj. Sec. 946; Walk. Pat. Sec. 688; Shelly v. Brannan, 4 Fish.Pat.Cas. 198 (Fed. Cas. No. 12,751); Fruit Jar Co. v. Whitney, 1 Ban. & A. 361. Probably the better authority is that if a preliminary injunction is granted after notice and hearing, without the requirement of a bond, the defendant is remediless, except in cases where the defendant is able to show that the complainant had no probable cause for the writ, and obtained it by imposition upon the court. Gorton v. Brown, 27 Ill. 489, 81 Am.Dec. 245; Sturgis v. Knapp, 33 Vt. 486; Cox v. Taylor's Adm'r, 10 B.Mon. (Ky.) 17.'

Taking some of the language used above literally, it would seem that defendant is concluded thereby. The general tenor of the decisions, however, must not be overlooked. In Russell v. Farley, supra, the court uses the terms 'bond or undertaking has been required. ' In Meyers v. Block, it is said damages cannot be recovered 'without a bond for the payment of damages or other obligation of like effect. ' In Tobey Furniture Co. v. Colby, Judge Blodgett tentatively makes the holding contended for with the qualification: 'Probably the better authority is,' etc. He does not cite either of the foregoing cases. In none of the foregoing cases did the facts require a decision upon the question here presented. On the other hand, the power of courts to impose terms upon parties obtaining injunctions is distinctly affirmed in Russell v. Farley, supra. 'It is,' says the court, 'a power inherent in the court as a court of equity, and has been exercised from time immemorial. ' And, again:

'The court will take into consideration what means it has of putting the party who may be ultimately successful in the position he would have stood if his legal rights had not been interfered with.'

And, again:

'The imposition of terms and conditions upon the parties before the court is an incident to its jurisdiction over the case, and, having possession of the principal case, it is fitting that it should have power to dispose of the incidents arising therein, and thus do complete justice and put an end to further litigation.'

In Meyers v. Block, supra, the court says:

'As to the power of a court of equity to impose any terms in its discretion as a condition of granting an injunction, there can be no question.'

In Lea v. Deakin (C.C.) 13 F. 514, Judge Drummond, speaking for himself and the district judge, says:

'The court orders the injunction, prescribes the terms upon which it shall be issued, and may require a bond, stipulation, or undertaking as a condition upon...