National Surety Co. v. Willys-overland, Inc.

• Decision Date: 30 November 1931
• Citation: 103 Fla. 738,138 So. 24
• Parties: NATIONAL SURETY CO. v. WILLYS-OVERLAND, Inc.
• Court: Florida Supreme Court

138 So. 24

103 Fla. 738

NATIONAL SURETY CO. v. WILLYS-OVERLAND, Inc.

Florida Supreme Court

November 30, 1931

Commissioners' Decision.

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Action by Willys-Overland, Inc., against the National Surety Company. Judgment for the plaintiff, and the defendant brings error.

Reversed.

COUNSEL

Mabry, Reaves & White, of Tampa, for plaintiff in error.

Gage &amp Polhill and S.E. Simmons, all of Clearwater, for defendant in error.

OPINION

ANDREWS C.

The defendant in error, as plaintiff below, filed its amended declaration against the National Surety Company, as defendant below, alleging a breach of the provisions of an injunction bond furnished by defendant in the lower court in the former case of Norris D. Blake et al. v. Willys-Overland, Inc., Roy Booth, as Sheriff, et al. The declaration further sets forth the dissolution of the injunction pursuant to the mandate of the Supreme Court (97 Fla. 626, 121 So. 884), reversing the order of the trial court in refusing to dissolve it, and that the plaintiff had sustained certain damages by reason of the issuance of the injunction, including $500, attorney's fee for services rendered plaintiff in getting the injunction dissolved.

The defendant, National Surety Company, filed pleas, to all of which the demurrers of plaintiff were sustained except the second plea, which denied that the injunction was dissolved by the Supreme Court, and the plaintiff joined issue on this plea. Amended pleas were thereupon filed, to all of which demurrers were sustained, except the first and second, which denies (1) that defendant executed the bond, and (2) denies that the bond sued on is its bond.

Defendant then filed its second amended plea, to which a demurrer and motion to strike were sustained, and this order of the trial court constitutes the twenty-seventh assignment of error, which appears to be the principal one relied upon for the reversal of this cause.

A trial was had upon the remaining issues which resulted in a verdict in favor of plaintiff in the amount of $572.70, which includes $72.70 court costs and $500 attorney's fee.

Reverting to the second amended plea which was held by the court to constitute no defense to the amended declaration, it is observed that the plea sets up in substance that: For a plea to so much of said declaration as 'seeks to recover for attorney fees' and expenses incurred 'in appealing' the case mentioned in the declaration defendant says that 'on or about May the 5th, 1928, a settlement was made between the parties to said injunction whereby for a valuable consideration all matters then in controversy in said injunction suit, wherein said injunction was issued, were settled; and the plaintiff herein for a valuable consideration released from the force and effect of its judgment all the lands involved in said suit;' and that 'At the time said settlement was made the injunction suit was pending in the Supreme Court, but same did not come on for decision in said cause until on or about April 23 1929. The appellant, plaintiff herein, failed to dismiss said appeal as required by the rules of the Supreme Court, or at all.'

An examination of the opinion in the case of Willys-Overland, Inc., et al. v. Blake et al., 97 Fla. 626, 121 So. 884, will show that the order of the trial court denying the motion to dissolve the temporary restraining order, which was appealed from, was held to have been error, and was reversed.

The effect of the decision and mandate of the Supreme Court was to dissolve the injunction on its merits. The general rule in this state, as is apparently true elsewhere, where the rules are similar, is that a dissolution of an injunction upon the merits operates as an adjudication that it was improperly issued. Sewell v. Huffstetler, 83 Fla. 629, 93 So. 162. See, also, Landis v. Wolf, 206 Ill. 392, 69 N.E. 103; 32 C.J. 449, § 773.

One of the conditions of the surety bond, which is pleaded and attached to the declaration as the cause of action, was that, 'if the injunction shall be dissolved, or if the bill upon which it was granted be dismissed,' the obligee shall pay to defendant Willys-Overland, Inc., all damages, losses, expenses, and charges which it may have sustained or have been put to by reason of the issuing of the said injunction.

It appears conceded that a reasonable attorney's fee incurred in procuring the dissolution of an injunction is an element of damages covered by the surety bond. 32 C.J. 471, § 818.

While there is no averment in the second amended plea that the damages, expenses, and charges incident to the injunction suit were settled and disposed of, the said plea does allege that on May 5, 1928, 'a settlement was made' whereby for mutual valuable consideration 'all matters then in controversy' in the injunction suit 'were settled' and that 'at the time said settlement was made the injunction suit was pending in the Supreme Court' undisposed of. In this connection it will be observed that the instrument offered in evidence as tending to prove the alleged settlement of all matters appears to be a 'release' of the remainder of lands involved in the...