Morris v. Whaley

• Decision Date: 30 September 1964
• Citation: 203 A.2d 618,42 Del.Ch. 65
• Parties: Reuben T. MORRIS and Grace H. Morris, plaintiffs, v. Roland H. WHALEY and Mildred E. Whaley, Defendants.
• Court: Court of Chancery of Delaware

Page 618

203 A.2d 618

42 Del.Ch. 65

Reuben T. MORRIS and Grace H. Morris, plaintiffs, v. Roland H. WHALEY and Mildred E. Whaley, Defendants.

Court of Chancery of Delaware, Sussex County.

Sept. 30, 1964.

Paul R. Reed, Georgetown, for plaintiffs.

Jackson W. Raysor, of Tunnell & Raysor, Georgetown, for defendants.

SHORT, Vice Chancellor:

This case is before the court on defendants' application for the assessment of damages on an injunction bond given to effectuate a temporary restraining order entered on April 19, 1962. The bond, with surety, was conditioned to pay all costs and damages which the defendants might suffer by reason of the restraining order in the event that it should be dissolved. On May 21, 1962 a preliminary injunction was entered. Thereafter, the cause was tried on the merits and on April 10, 1964 an order was entered dissolving the temporary injunction and providing that 'upon application of the defendants, a hearing upon the issue of damages suffered by the defendants by reason of the temporary injunction will be held and the plaintiffs' bond shall continue until such time as a final order shall be entered on said issue of damages.' On June 22, 1964 the court heard testimony on this issue. Thereafter, the court, upon its own motion, raised the question of its jurisdiction to assess damages on the injunction bond. This is the decision of the question thus raised.

While there is some division of authority ¹, it has generally been held that in the absence of statute a court of equity has no power to assess damages upon an injunction bond as an incident of the original cause. In such case the party aggrieved is put to his action at law on the bond. American Bonding Co. v. State, 120 Md. 305, 87 A. 922; Jordan v. J. A. Callaway & Co., 138 Ga. 209, 75 S.E. 101; Dougal v. Eby, 11 Idaho 789, 85 P. 102; Grove v. Bush, 86 Iowa 94, 53 N.W. 88; Clayton v. Martin, 31 Ark. 217; Higgins v. Adelson, 131 Neb. 820, 270 N.W. 502; Junction Irrigation Co. v. Snow, 101 Utah 71, 118 P.2d 130; High on Injunctions, § 1642, § 1657; 1 Whitehouse Equity Practice, 749; Simpson on Suretyship, § 107. Though there are statutes in many states which provide a summary method for awarding damages in the original cause, no such statute has been enacted by the Legislature of this state. Neither is there any warrant sustaining such a procedure in the practice of the English High Court of Chancery. Phelps v. Foster, 18 Ill. 309; High on Injunctions, § 1657.

The practice in the Federal Courts has long permitted assessment of damages in the injunction suit. Rule 65(c) of the Federal Rules of Civil Procedure, in addition to requiring security to effectuate a restraining order or preliminary injunction, expressly provides that the liability of a...