Mitchell v. Sullivan

• Decision Date: 01 July 1883
• Citation: 30 Kan. 231,1 P. 518
• Parties: L. C. MITCHELL v. J. W. SULLIVAN, et al
• Court: Kansas Supreme Court

1 P. 518

30 Kan. 231

L. C. MITCHELL v. J. W. SULLIVAN, et al

Supreme Court of Kansas

July 1, 1883

Error from Greenwood District Court.

APRIL 7, 1882, Sullivan obtained from the judge of the district court, at chambers, a temporary injunction restraining Mitchell from proceeding further with the construction of a certain school house in District No. 85, in Greenwood county. On the 4th of May following, Sullivan, at his costs and before answer, dismissed the action in which the foregoing injunction was granted, and without prejudice to a future action. Thereafter Mitchell brought an action against Sullivan and his sureties, on the undertaking executed to obtain the injunction aforesaid. At the December Term, 1882 the district court sustained a general demurrer to the petition, and gave judgment accordingly for defendants. Mitchell brings the case here.

Judgment reversed and cause remanded.

T. L Davis, for plaintiff in error.

Peyton Sanders & Peyton, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action upon an undertaking executed by the defendant to obtain a temporary injunction. The district court sustained a demurrer to the petition, upon the ground that, as the case in which the temporary injunction was granted was dismissed before answer at the costs of the plaintiff therein, and without prejudice to a future action, it had not been finally decided that the injunction ought not to have been granted, and therefore that the petition did not state facts sufficient to constitute a cause of action.

The ruling of the court below was erroneous, as in our judgment the discontinuance of the action by the plaintiff was not only a confession that the temporary injunction ought not to have been granted but was a final decision that he was not entitled to the injunction. When a petition or action is dismissed, in strictness the injunction falls ipso facto, and therefore when the cause was dismissed the temporary injunction fell with it, and no motion or order was needed to dissolve it. If the district court upon a hearing had dissolved the injunction, we think it would be conceded that the court had finally decided that the injunction ought not to have been granted. As the judgment of dismissal terminated the proceedings, and had the same effect upon the rights of the parties as if a motion to dissolve the injunction had been sustained, and as the judgment of dismissal was the final action of the court so far as the temporary injunction was concerned, this was equivalent to a final decision by the court that the plaintiff was not entitled to the injunction order. While the...