Shenandoah Nat. Bank v. Read

• Decision Date: 06 October 1892
• Citation: 53 N.W. 96,86 Iowa 136
• Parties: SHENANDOAH NAT. BANK v. READ.
• Court: Iowa Supreme Court

86 Iowa 136

53 N.W. 96

SHENANDOAH NAT. BANK

v.READ.

Supreme Court of Iowa.

Oct. 6, 1892.

Appeal from district court, Page county; C. F. LOOFBOUROW, Judge.

Action upon an injunction bond executed by Elizabeth Babcock as principal and defendant, Read, as her surety, in an action wherein Elizabeth Babcock was plaintiff and this plaintiff and others were defendants. Said bond is conditioned as follows: “The condition of the above obligation is such that whereas the said Elizabeth Babcock has this day filed in the office of the clerk of the circuit court of the state of Iowa in and for Page county a petition praying the issuance of an injunction to restrain the said obligees, and all of them, and all persons acting for them or claiming under them, or any of them, from setting up claim to, or attempting in any manner to dispose of, the one-half interest of plaintiff in Rosa Sprague, thoroughbred filly; and whereas, on the 4th day of December, 1882, the Hon. D. D. GREGORY, judge of the said circuit court, made an order on said petition, allowing said writ of injunction upon the following terms, to wit, on filing bond in the sum of $1,000: Now, therefore, if the said Elizabeth Babcock shall and will pay all damage which may be adjudged against her by reason of such injunction, then this obligation to be void; otherwise to be and remain in full force and virtue.” Plaintiff alleges “that the terms and conditions of said bond have been broken, the said injunction suit has been disposed of in favor of this plaintiff, and the obligees have failed to comply with the conditions, all to plaintiff's damage, $1,000,” for which, with costs, judgment is asked. Elizabeth Babcock was not served with notice, and did not appear. The defendant, Read, answered, admitting the action for an injunction, the execution of the bond, and that an injunction issued as alleged. He denies that said action was ended, and denies any damage to plaintiff. The case was tried by a jury, and a verdict and judgment rendered for plaintiff. Defendant, Read, appeals.James McCabe, for appellant.

GIVEN, J.

1. This case is submitted upon appellant's abstract and argument. In view of the importance of the principal question presented, we regret to be compelled to determine it without a full argument. The court admitted in evidence, over appellant's objection, the record of the decree in the injunction case, which shows that the petition of the plaintiff therein was dismissed, and gave the following instruction: “The proofs in this case show that the case brought by Elizabeth Babcock in which the injunction bond in suit was filed has been finally determined against said Elizabeth Babcock. This determination of the case establishes the fact that the writ of injunction therein issued was wrongfully sued out, and the only question to be considered and determined by you in this case is, what amount of damage, if any, did this plaintiff sustain by reason of the issuance and service of the said writ?” Appellant complains of this action of the court, upon two grounds, namely, that for reasons stated the decree is not a valid decree, and that he, not being a party to that action, is not bound by said decree. As to the first ground of complaint, it is sufficient to say that this is the same decree, the validity of which was called in question in Babcock v. Wolf, 70 Iowa, 676, 28 N. W. Rep. 490, and upon the same grounds now urged against it. For the reasons given in that opinion, we hold the decree to be valid.

2. Appellant contends that, as he was not a party to the action in which the decree was rendered, he is not bound by the finding therein that the injunction was wrongly sued out, and therefore the court erred in admitting the decree in evidence, and in giving the instruction quoted above. The right of Elizabeth Babcock to the injunction was directly in issue in that case, and was adjudicated against her. The dismissal of her petition was a determination that she was not entitled to the injunction, or, in other words, that it was wrongly sued out. Loomis v. Brown, 16 Barb. 325;Dowling v. Polack, 18 Cal. 627. The case before us must not be confounded with cases where fraud or collusion in obtaining the decree is alleged, nor with those upon bonds differently conditioned. Appellant cites cases upon bonds given to secure the payment of any sum that might be found due from the principal on an accounting, and cases on official bonds. These are not in point; the former being merely security for the payment of a debt, and the latter conditioned generally for the performance of official duties, and not for a specific act, as in this case. Appellant relies upon the general doctrine that none but parties to an action, and their privies, are bound by the adjudication. While such is the general rule, the books and daily practice afford many instances where sureties are concluded, by judgments against their principals, though not parties to the action; as, for instance, in the case of replevin and supersedeas bonds. Whether, in the absence of statute, the surety is thus concluded, depends upon the terms and conditions of his undertaking. If his covenant is that his principal will comply with the judgment, then he is concluded by that judgment as to all matters determined thereby, though not a party to the action. In McAllister v. Clark, 86 Ill. 236, it was claimed, as in this case, that, the surety not being a party, he was not bound by the decree. The court says: “The misfortune to him is, his contract binds him to abide that decree, without being a party to it. His undertaking is that he will pay all such costs and damages as shall be adjudged against the complainant in case the injunction...