Nolan v. Jones

• Decision Date: 01 March 1892
• Citation: 108 Mo. 431,18 S.W. 1107
• Parties: NOLAN v. JONES et al.
• Court: Missouri Supreme Court

18 S.W. 1107

108 Mo. 431

NOLAN v. JONES et al.

Supreme Court of Missouri.

March 1, 1892.

JUDGMENT ON INJUNCTION BOND — REMOVAL OF ADMINISTRATOR PENDING MOTION — RIGHT OF SURETIES TO DEFEND — APPEAL.

1. Jurisdiction to assess damages on an injunction bond against a public administrator and his sureties is not lost by the revocation of the letters of administration pending the motion to assess the same, and an order that the "cause now proceed in the name of" the substituted administrator.

2. Under Rev. St. 1879, § 2713, providing that, on the dissolution of an injunction, damages shall be assessed and judgment rendered against the "obligors on the bond," the sureties have a right, on motion for such assessment and judgment, to be let in to defend, and to require a jury.

3. Under Rev. St. 1879, § 3710, giving the right of appeal to "every person aggrieved" by a final judgment, such sureties may appeal from a judgment against the principal, as it is conclusive against them, in the absence of fraud and collusion.

Appeal from circuit court, Johnson county; CHARLES W. SLOAN, Judge.

Bill for injunction by George N. Nolan, public administrator, against J. H. Jones and others. Injunction dissolved, and judgment on injunction bond against complainant, from which his sureties, D. C. Mastin and others, appeal. Reversed.

T. A. Frank Jones and Gardiner Lathrop, for appellants. Graves & Aull and J. D. Shewalter, for respondent.

MACFARLANE, J.

This suit was commenced in Lafayette county, in February, 1884, by George N. Nolan, public administrator of Jackson county, in charge of the estate of J. H. Reed, deceased, to restrain the defendant O. A. Jones and others from selling certain personal property under mortgage. Plaintiff, as such administrator, gave bond, with D. C. Mastin, J. H. Lipscomb, J. M. Fox, and Frank Jones as sureties. This bond was for $5,000, and was conditioned that "if plaintiff shall abide the decision which shall be made thereon, and pay all sums of money, damages, and costs that shall be adjudged against him if the said injunction shall be dissolved, then this obligation to be null and void; otherwise, to remain in full force and effect." Upon filing this bond a temporary injunction was granted. The suit was afterwards removed to Johnson county. An answer and motion to dissolve the injunction were filed by defendants, upon which the case was tried at the October term, 1885. The court found for the defendants, and judgment was rendered, dissolving the injunction and dismissing the petition. At the same term, defendant Jones filed a motion to assess his damages on the injunction bond. At the next term (February, 1886) the cause came on again, "and the plaintiff files and presents to the court the information and suggestion that since the proceeding had herein, at the last term of this court, George N. Nolan has ceased to be the administrator of Isaac H. Reed; and the plaintiff also files and presents the records of the probate court of Jackson county, Mo., revoking the letters of administration of said Nolan; and thereupon it is ordered and directed by the court here that this cause now proceed in the name of Harmon Bell, public administrator of Jackson county, Mo. And the motion heretofore filed by the plaintiff for a rehearing upon the trial of the injunction is taken up and submitted to the court, and, after being seen and heard, is by the court overruled." The court then heard the motion for assessment of damages, filed the previous term, and entered judgment for the damages assessed against the sureties in the bond only. From this judgment the sureties appealed to the Kansas city court of appeals, where the judgment assessing damages was reversed, and cause remanded to the circuit court. At the first term after the case was remanded (February, 1888) defendant Jones filed a motion to vacate the order made at the February term, 1886, substituting Harmon Bell as plaintiff in lieu of Nolan, for the alleged reasons "that the order was inadvertent and erroneous; that Nolan cannot be discharged from the obligation of his injunction bond by the order of substitution; that Nolan was not discharged by the probate court; and that both parties to the suit have ignored the order." This motion was sustained, and leave was thereupon given the sureties to file bill of exceptions during the first week of the June term. The same leave was granted George W. Nolan, who appeared by his attorneys. At the June term, defendant Jones filed his amended motion for the assessment of damages. Some evidence was heard thereon on June 16, and the further hearing continued until June 27, 1888. On that day the sureties filed a motion to set aside the waiver of a jury for the assessment of damages on the pending motion, and for a jury to assess damages. These motions were stricken out, on motion of the defendants, on the ground that the sureties were not parties to the suit, and had no right to call upon the court to entertain such motions. The further hearing of the assessment of damages was taken up, Nolan not appearing. Defendant offered no further testimony, and the court refused to hear evidence offered by the sureties on the ground that they had no right to be heard in that proceeding. The court assessed the damages of defendant Jones at $2,978.70 and entered judgment for that amount in his favor, and against George N. Nolan, public administrator of Jackson county, and as such administrator of the estate of I. H. Reed, deceased, and no one else. The sureties filed a motion for new trial, which was stricken out on motion of defendant. They then filed a bill of exceptions, and also an affidavit for appeal, which was...