State v. Freshwater

• Decision Date: 16 April 1929
• Docket Number: C. C. 419.
• Citation: State v. Freshwater, 107 W.Va. 210, 148 S.E. 6 (W. Va. 1929)
• Parties: STATE, to Use of FINLEY BROS. CO., v. FRESHWATER et al.
• Court: West Virginia Supreme Court

148 S.E. 6

107 W.Va. 210

STATE, to Use of FINLEY BROS. CO., v. FRESHWATER et al.

C. C. No. 419.

Supreme Court of Appeals of West Virginia.

April 16, 1929

Submitted April 9, 1929.

Syllabus by the Court.

A bond required by a statute will be construed with reference to the statute and will not be given a broader significance than the statute implies.

The spirit as well as the letter of an injunction must be observed by all the parties to an injunction proceeding.

One who is a defendant to an injunction bill, but is not named in the injunction order, must nevertheless abide by the provisions of the writ. He is a "person enjoined" under section 10 of chapter 133, Code, and may recover such damages as he incurs or sustains by reason of the mandate, in case it be dissolved.

Case Certified from Circuit Court, Hancock County.

Notice of motion for judgment by the State, to the use of Finley Bros. Company, against George W. Freshwater and others. A motion to quash the notice was sustained and challenge of the sufficiency of the notice certified to the Supreme Court of Appeals for decision. Reversed.

Ingram & Levy, of Chester, for plaintiff.

Nesbitt Goodwin & Nesbitt, of Wheeling, for defendants.

HATCHER J.

This is a review of a ruling of the circuit court on a notice of motion for judgment. Heretofore, G. W. Freshwater and L. B Weaver secured a temporary injunction against the board of education of the independent school district of Chester in Hancock county, and against the sheriff of the county restraining them from making certain payments to the Finley Bros. Company. The company was made a defendant to the injunction bill. The court required a bond in the penalty of $1,000 which was given by Freshwater and George C. Holliday. The condition of the bond is as follows: "Now therefore, if the said George W. Freshwater, et als., plaintiffs, shall well, truly and faithfully pay off all such costs as may be awarded against the plaintiffs, and also such damages as may be incurred or sustained by the defendants, in case this injunction be dissolved, then this obligation to be void; else to remain in full force." The injunction was subsequently dissolved. The company seeks to recover on the bond, in this proceeding, $950 which it paid its attorneys in procuring the dissolution of the injunction. The circuit court sustained a motion to quash the notice and certified to this court, for its decision, the challenge of the sufficiency of the notice.

Section 10 of chapter 133, Code, requires that a bond be given before an injunction shall become effective, conditioned "to pay *** such damages as shall be incurred or sustained by the person enjoined, in case the injunction be dissolved." A bond required by a statute will be construed with reference to the statute and will not be given a broader significance than the statute implies. State v. Wotring, 56 W.Va. 394, 49 S.E. 365; Holliday's Ex'rs v. Myers, 11 W.Va. 276; 9 C.J. p. 34, § 56. Relying on this rule of construction, the defendants herein take the position that while the Finley Bros. Company was a defendant in the injunction suit, and while the condition of the bond is to pay the damages incurred "by the defendants," nevertheless the company was not enjoined; that the obligation of the bond to compensate the defendants must be limited by reason of the statute to such defendants as were enjoined; and that when so limited the company has no right of action against them on the bond. The company contends that it was the real party in interest in the injunction suit; that it was the only defendant which suffered any damage by reason of the injunction; that while not specifically enjoined, the effect of the restraining order was to prevent it from enforcing its demands against the board; and that in reality it was enjoined.

The spirit as well as the letter of an injunction must be observed by all the parties to an injunction proceeding. Economist Co. v. Range Co. (C. C.)...