Spaulding & Kimball Co. v. Aetna Chemical Co

• Decision Date: 07 October 1924
• Citation: 126 A. 588,98 Vt. 169
• Parties: SPAULDING & KIMBALL CO. v. AETNA CHEMICAL CO
• Court: Vermont Supreme Court

126 A. 588

98 Vt. 169

SPAULDING & KIMBALL CO. v. AETNA CHEMICAL CO

Supreme Court of Vermont

October 7, 1924

May Term, 1924.

APPEAL IN CHANCERY, from assessment of damages after dissolution of an injunction. Heard on the pleadings and findings of fact by the chancellor, in vacation, after the September Term, 1923 Fish, Chancellor. From assessment of damages as made the plaintiff appealed. The opinion states the case. Reversed and remanded.

Decree reversed and cause remanded, with costs in this Court.

Martin S. Vilas and Guy M. Page for the plaintiff.

Max L. Powell for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

BUTLER

The defendant seeks to recover damages by reason of a temporary injunction order issued by the chancellor, April 7, 1923, restraining the prosecution of a personal action at law, at issue and then on trial in the Chittenden county court in which the parties hereto are reversed. Damages were assessed by the chancellor and a decree for the defendant therefor entered. Plaintiff excepted.

The complaint and order of the chancellor were served on the defendant while the trial of the action at law was in progress, and thereupon, without proceeding further, the law case was continued to the September Term of court. The bill of complaint in which the injunction was granted was disposed of on August 8, 1923, by an order filed by the chancellor, in which it was adjudged that the demurrer which had been filed be sustained, the complaint adjudged insufficient, and a decree be entered for defendant with costs. No appeal was entered the decree became final, and the injunction was thereby dissolved. Sometime previous to November 22, 1923, the date did not appear, defendant's motion was heard by the chancellor for injunction damages, a finding of facts made, and damages assessed.

The plaintiff contends that the court had no jurisdiction of the cause subsequent to final decree on the merits, to hear and determine injunction damages. The cause still remained on the September Term docket, and while the decretal order was filed in vacation and the time for appeal had expired, no formal decree had been signed and extended on the record. Cases are to be found more or less analogous, where it is held that when the statute does not designate the time of filing a motion or suggestion of damages caused by injunction, the assessment should in general be made at the term at which the cause is finally disposed of by the court, but this is not absolutely necessary. Loehner v. Hill, 19 Mo.App. 141; Moore v. Mexico S. B., 58 Mo.App. 469; Neiser v. Thomas, 46 Mo.App. 47; Sutliff v. Montgomery, 115 Mo.App. 592, 92 S.W. 515, 32 C. J. 444, § 763.

The statute (G. L. 1539) under which the plaintiff seeks to recover damages provides that: "When an injunction * * * is dissolved by final decree in favor of the defendant, he shall be entitled to recover his actual damages caused by the wrongful issuing of the injunction, which shall be ascertained by reference to a master." This statute does not contemplate the assessment of damages until after final decree has been entered. The court clearly had the power to hold the case for the purpose of assessing the injunction damages, that it exercised that power may be fairly implied. In view of our practice of entering final decree in vacation, as was done in this case, in the circumstances, we think the defendant acted seasonably. G. L. 1494. At least, until a formal decree, as required by the rule, is signed and filed, or the case has gone off the docket, it should be treated as the court treated it, as pending for that purpose.

The plaintiff insists that the chancellor was not appointed a master to assess damages, as required by the statute under which the defendant claims to recover, and so is without jurisdiction, for such damages must be assessed as the law directs. This challenges the right of the court to assess such damages without reference to a master.

Ordinarily the power to assess injunction damages is inherent in the court, independent of the statute. Sturgis v. Knapp, 33 Vt. 486. The defendant, both by virtue of the order and by statute, is entitled to recover the damages caused by the wrongful issuing of the injunction, and it is held that: "If the court have power to make a payment of damages a condition on which the injunction issues, and to require a bond to secure its performance, it must of necessity have the power to determine the damages, and decree the payment, as between the parties to the suit, and the party who takes the injunction, takes it subject thereto." Sturgis v. Knapp, 33 Vt. 486. The purpose of this statute cannot be held to deprive the court of its inherent right to assess the damages under its own injunction order. Sturgis v. Knapp, supra; Andrizinsky v. Phillips, 97 Vt. 21, 121 A. 435. There is no apparent reason why this legislation, intended to make an exception in this class of cases.

The meaning of a statute is to be determined by the clear purpose of the act, which, in granting authority to the court, is generally held to be construed as directory merely. Downer v. Hazen, 10 Vt. 418. The word "shall," in this statute is synonymous with "may," and should be so construed. Such may be said to be the usual meaning of the word "shall," when used by the Legislature in a grant of authority to the court. The same principle is recognized and approved in the very recent case of Andrizinsky v. Phillips, 97 Vt. 21, 121 A. 435. And it is said to be always used in a permissive sense, unless necessary to give effect to the legislative intent. Cooke v. State Nat. Bank, 52 N.Y. 96, 11 A. R. 667.

Moreover this statute was enacted in 1884 (Laws of 1884, No. 142, § 1), and the clause respecting the assessment of damages by a master, if intended as anything more than merely directory, was in effect, at least to that extent, repealed by the legislation of 1906 (Act No. 62, § 1; Act No. 6, § 20), giving the chancellor authority to hear...