Russell v. Rogers

• Decision Date: 30 September 1870
• Citation: 1870 WL 6500,56 Ill. 176
• Parties: CYRENUS RUSSELL et al.v.JAMES H. ROGERS et al.
• Court: Illinois Supreme Court

56 Ill. 176

1870 WL 6500 (Ill.)

CYRENUS RUSSELL et al.

v.JAMES H. ROGERS et al.

Supreme Court of Illinois.

September Term, 1870.

WRIT OF ERROR to the Circuit Court of Peoria county; the Hon. S. D. PUTERBAUGH, Judge, presiding.

The opinion states the case.

Messrs. JOHNSON & HOPKINS, for the plaintiffs in error.

Messrs. MCCULLOCH & CRATTY, for the defendants in error

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that in the year 1869 defendants in error were road commissioners of the town of Radnor, in the county of Peoria, and as such were about to open a public highway over the premises of Russell. And on the 8th day of March of that year he filed his bill and obtained an injunction against defendants in error, restraining them from opening the road, when Russell, with the other plaintiffs in error, filed an injunction bond in the case. On the 3d day of June, 1869, the cause came on to be heard on a demurrer to the bill and on a motion to dissolve the injunction, upon proofs of the parties, when the injunction was dissolved and the bill dismissed. This suit is brought on the bond to recover for expenses, costs and solicitors' fees paid, and for solicitors' fees for which defendants in error are liable to pay and for damages paid and sustained. On the trial in the court below the only evidence of damage was, that defendants in error were liable to their attorneys for $100 for defending the suit for the injunction, and for that amount they recovered a judgment; to reverse which the record is brought to this court and errors have been assigned.

In support of the judgment of the court below we are referred to the case Hibbard v. McKindley, 28 Ill. 240, where it was held, that under the condition of an injunction bond, that the obligors would pay all such costs and damages as should be awarded against the complainant on the dissolution of the injunction, damages might be recovered that were not assessed by the court when the dissolution was ordered. It is urged that this case is conclusive of the question. This would no doubt be true were it not for the act of 1861 (Sess. Laws, 133). Prior to the passage of that law, the circuit courts were authorized to award damages not exceeding ten per cent, when an injunction restraining the collection of a debt was dissolved, but there was no provision of the statute authorizing the assessment of damages in other cases. And the act of 1861 was no doubt passed to remedy the existing inconvenience in the practice, and to relieve the defendant from the necessity of suing on the injunction bond, when the damages could be collected on execution against complainant.

That act declares that, in all cases, on the dissolution of an injunction, the chancellor, before finally...