Robertson v. Smith

• Decision Date: 28 October 1891
• Docket Number: 14,774
• Citation: 28 N.E. 857,129 Ind. 422
• Parties: Robertson v. Smith et al
• Court: Indiana Supreme Court

28 N.E. 857

129 Ind. 422

Robertson v. Smith et al

No. 14,774

Supreme Court of Indiana

October 28, 1891

From the Marion Superior Court.

The cause is reversed, and remanded for further proceedings in accordance with this opinion.

W. H H. Miller, F. Winter and J. B. Elam, for appellant.

T. L Sullivan, A. Q. Jones and A. C. Harris, for appellees.

OPINION

Miller, J.

The appellee Smith brought an action against the appellant in the Marion Circuit Court, in which he asked an injunction. In connection with the complaint a bond was filed by the appellees by which they obligated themselves to the defendant in the action for the payment of all damages and costs which might accrue by reason of the injunction or restraining order prayed for. Upon a hearing the court awarded an injunction until the further order of the court. The cause was appealed to this court, the judgment reversed and cause remanded, with instructions to the circuit court to dissolve the restraining order. Robertson v. State, ex rel., 109 Ind. 79, 10 N.E. 582.

This action is upon the injunction bond to recover attorney's fees and other expenses incident to resisting the application for the injunction and procuring its dissolution.

The sole question in the case arises out of the ruling of the court in overruling the demurrer to the third and fourth paragraphs of the answer. The fourth paragraph of answer is as follows:

"Fourth Paragraph: The defendants, for a further answer to plaintiff's complaint herein, say that they admit the execution of the bond or undertaking sued on in this cause, and of the granting of the injunction by said circuit court, as set out in said complaint, but defendant say that said circuit court had no jurisdiction over the person of said Robertson in said suit of Smith v. Robertson, and that the granting of said injunction was void, and that by reason thereof said bond or undertaking now sued on herein became and was wholly invalid."

The third paragraph is, in substance, the same, except that in addition to the facts set out in the first paragraph it avers that the sole object of the suit was not for the purpose of obtaining an injunction, but was for that and other relief, and that the expense and attorney's fees were, in part, incurred on account of the other relief sought in the action, and, therefore, not recoverable in this action.

The position of the appellees, who executed the injunction bond upon which the order was obtained, is that the bond is invalid, and that no recovery can be had upon it by the party against whom the injunction was granted, because the court had no jurisdiction over the person of the defendant.

While the appellant claims that having been brought into court and an injunction obtained, wrongfully, against him, he had a right to have it dissolved by the court, and that for his attorney's fees and other necessary expenses in so doing he has a cause of action upon the bond.

As the positions assumed by the counsel for both parties are in harmony upon the question of the want of jurisdiction in the circuit court to grant the injunction, and that the defendant in that action might have disregarded and treated it as absolutely void, we need not stop to discuss these matters.

The question we must determine is whether the defendant in such action had the right to resist the making of the order and to apply to the courts for its dissolution, and after having successfully done so hold the plaintiff upon his bond for the necessary expense incurred in the proceeding.

If the contention of the appellees is the correct one, the position of a party against whom an injunction has been granted by a court of general jurisdiction is an embarrassing one. He must determine for himself whether the court has jurisdiction to make the order. If, in addition to the propositions of law involved, there are disputes concerning the place of his domicile, he must, at his peril, determine how that question of law and fact will ultimately be decided. If he concludes that the court has not jurisdiction, and disobeys its order, he will be fined and imprisoned for contempt. If, on the other hand, he concludes to obey the order, and leave it to the courts to determine the question of its validity, then, however much he may be injured by it, he has no remedy.

We have arrived at the conclusion that neither reason nor the weight of authority will compel a party litigant to occupy this anomalous position.

An injunction can not be granted without a bond. The agreement in the bond to pay damages resulting from it is clear and explicit. Damages must, from the nature of the case, result if the defendant is restrained from doing that which he has a right to do. He must resist the order, and must, by himself or counsel, defend himself against proceedings for contempt. He can not go his way as though no such order had been granted, however invalid and unauthorized it may be. It can not fairly be said that he has an election to disregard the order, for he is put in a position where he must vindicate his rights, one way or another, before a court.

This being true, it would seem remarkable that he should be required to do this at his own expense, when there is a bond given for the very purpose of protecting him from the wrongful action of the court.

This view of the law is taken in Walton v. Develing, 61 Ill. 201, where it is said: "Counsel for appellees assumes that, if the writ was void--if the court had no jurisdiction--then there was no necessity to defend, or for a motion to dissolve the injunction. The bill was, in fact, pending, and the injunction had been issued. A party has an equal right to come into court to defend a void, as a valid, writ. * * * In this case the parties were liable to fine and imprisonment--they were under restraint until the court made an order to the contrary--and it was eminently proper that they should appear in court and make their defence."

In that case the cause was reversed, and the court below directed to hear the evidence upon the suggestion of damages.

In Adams v. Olive, 57 Ala. 249, this question is referred to as follows:

"It must not be inferred, however, that we mean to intimate that even if Judge Keils, who made the fiat that an injunction issue upon the execution of a proper bond, had no authority to make such an order, and the writ of injunction might therefore have been disregarded; yet defendants who caused the writ to be wrongfully issued, and obtained the benefit of a delay thereby in favor of their principal, would be allowed to take advantage of their own wrong, and be released from the obligation of their bond. They could not be discharged from liability in such a case on that account."

In Hanna v. McKenzie, 44 Ky. 314, 5 B. Mon 314, it is said: "The question then arises whether the bond, executed preparatory to, and, as alleged, as a condition precedent to obtaining the injunction from the Hickman Circuit Court, is void from the fact that that court was not authorized to enjoin a judgment in the general court. Although it is conceded that the circuit court was not authorized to enjoin the judgment of the general court, yet it possessed general chancery jurisdiction, and with authority to grant injunctions, and an injunction awarded by it, even of a judgment in the general court, carried with it colorable authority. Whether the defendants rendered the injunction, thus procured by them, available to delay and embarrass the plaintiff in the collection of his judgment does not appear. But in the absence of all proof to the contrary, the presumption may be indulged that it had that effect, and was so intended. But they obtained it with their eyes open and without any agency, or fault, or fraud on the part of the plaintiff. They executed the bond without...