State v. Pubcell

• Decision Date: 18 February 1888
• Citation: 5 S.E. 301,31 W.Va. 44
• Court: West Virginia Supreme Court
• Parties: State, to Use of Griffith, v. Pubcell et al.

5 S.E. 301

(31 W.Va. 44)

State, to Use of Griffith,

v.Pubcell et al.

Supreme Court of Appeals of West Virginia.

February 18, 1888.

1. Injunction—Bond—Action on.

The order of the judge awarding an injunction under the last clause of the first section of section 10 of chapter 133 of the Code, required E. P., suing out the injunction, to give bond in the penalty of $1,000, "conditioned for the payment of all such costs and damages as may be awarded to G. should the injunction be dissolved." E. P., with sufficient sureties, voluntarily executed the required bond, "conditioned for the payment of any decree or order that may be awarded against him, and all such costs and damages as shall be incurred or sustained by G. in the event the injunction be dissolved." The injunction was dissolved and said B. P. was, by the decree dissolving the same, to pay to G. the sum of $1,145.25, with interest from the ——day of November, 1883, until paid, and $147.66 costs. In an action on this injunction bond against B. P. and his sureties at the relation of G. to recover the amount of said decree and damages he recovered judgment for the penalty of the bond ($1,000) to be discharged by the payment of $147.66, the costs mentioned in said decree. Upon a writ of error allowed on the petition of G., held, (1) that as the penalty of the bond, with interest thereon from the date of the dissolution of the injunction, was less than the amount, which at the date of such dissolution the obligors in the injunction bond then became liable for, the plaintiff was entitled to recover for the benefit of G. the whole penalty of the bond, with interest from that date to the date of said judgment, with interest on that aggregate from the date of the judgment; (2) the plea to said action setting forth in extenso the order of the judge awarding the injunction, as well as said bond and the condition thereof, and averring that by reason of the variance between the condition of the bond and the condition prescribed by the order of the judge awarding the injunction the said bond is null and void, presented no defense to the said action. Snyder, J., dissenting.

2 Same.

In an action on an injunction bond brought by the relator to recover damages upon the dissolution of the injunction, where none have been awarded to him by the decree dissolving the same, the declaration must specify the particular injuries complained of occasioning such damages with such clearness and distinctness of statement that they may be understood by the party who is to answer the same. 3. Pleading—Plea IN Bab.

A plea in bar alleging matters which, if true, present no defense to the action, if objected to, should be rejected.

4 Same.

When a plea is tendered in bar of an action and offered to be filed, and the plaintiff objects to the filing thereof and moves the court to reject the same, the court, upon consideration of such motion, will, for the purposes thereof, regard the matters of fact alleged in the plea as admitted to be true; and if the matters thereof present no defense to the action, the plea should be rejected.

(Syllabus by the Court.)

Error to circuit court, Mercer county; David E. Johnson, Judge.

This is an action of debt in the circuit court of Mercer county, in the name of the state of West Virginia, at the relation and for the benefit of J. T. Griffith against Edmund Purcell, Thomas Purcell, and Thomas Reed, upon aninjunction bond in the penalty of $1,000, which, after reciting that said Edmund Purcell, in a certain chancery suit instituted by him against said J. T. Griffith, had obtained from the judge of the circuit court of said county a preliminary injunction restraining said Griffith from collecting and certain of his debtors from paying to him certain moneys, was subject to the following condition: "If the above bound Edmund Purcell shall pay and satisfy any decree or order that may be awarded against him, and all such costs and damages as shall be incurred or sustained by the said Griffith in the event the injunction be dissolved, then the above obligation to be void, else to remain in full force and virtue." This injunction was wholly dissolved on the 1st day of December, 1883. The order of the judge awarding the injunction concluded as follows: "But this order is not to take effect until the plaintiff or some one for him shall before the clerk of the circuit court of Mercer county enter into a bond, with sufficient security, to be approved by said clerk, in the penalty of $1,000, conditioned for the payment of all such costs and damages as may be awarded to the defendant Griffith should this injunction be dissolved." The declaration contains two counts, both of which correctly de scribe and set forth the bond and the condition thereof with all proper recitals. The breach of the condition of the bond alleged in the first count, after rejecting all useless and redundant verbiage, is in these words: "And the said plaintiff saith that the injunction aforesaid hath been dissolved by the said circuit court and a decree rendered in favor of the plaintiff against said Thomas Purcell for the sum of $1,145.26, with interest from the—— day of November, 1883, till paid, and $147.66 costs; and the said Edmund Purcell hath incurred and become liable by reason of the dissolution of said injunction to pay to the said plaintiff damages to the amount of $1,000; nevertheless the said Edmund Purcell, although often requested the amount of the decree aforesaid, and the costs and damages aforesaid, hath not paid to the said plaintiff, but hath hitherto wholly neglected and refused and still doth neglect and refuse to pay and satisfy the sum aforesaid, whereby an action hath accrued, " etc.; and then concludes with the usual negative averments of non-payment of the penalty to the plaintiff, to the damage, etc. The second count makes no mention of the decree for $1,145.26, and seeks only to recover said $147.66 costs and damages. In this count the breach of the condition of the bond is the non-payment of the said costs and damages, and it is alleged in all respects substantially in the same words as that in the first count, and concludes in the same manner. No demurrer was entered to this declaration, nor was its sufficiency in any manner before or after the trial called in question. The defendants tendered and offered to file three special pleas, Nos. 1, 2, and 3, to the filing of which the plaintiff objected, which objections as to pleas 1 and 2 were sustained, and they were rejected, but overruled as to plea No. 3, which was filed. To this last plea the plaintiff tendered and offered to file three special replications, all of which, being objected to by the defendants, were rejected. The defendants then pleaded "conditions performed" and "conditions not broken, " to which as well as to plea No. 3 the plaintiff replied generally, and issues were thereon joined. The objections made to the rulings of the court in rejecting pleas Nos. 1 and 2, and in filing plea No. 3, and rejecting the special replications thereto, were saved to the parties respectively by proper bills of exceptions. The plaintiff afterwards moved the court to strike out said plea No. 3, which motion the court overruled; and neither party requiring a jury, all the matters of law and fact were submitted to the court, which rendered the following judgment: "The court, having inspected the record and heard the proofs adduced, finds for the plaintiff the sum of $147.66, the amount of costs set forth in the taxation of costs made by the clerk of this court in the chancery cause of Edmund Purcell, Sr., v. J. T. Griffith et al. due to said Griffith; it is therefore considered by the court that the plaintiff recover of the said defend-ants the said sura of one thousand dollars, the debt in the plaintiff's declaration mentioned, to be discharged by the payment of the said sum of $147.66, the costs as aforesaid and his costs about his suit in that behalf expended, including an attorney's fee of $5.00." To this judgment a writ of error has been allowed upon the petition of the relator J. T. Griffith, who assigns as error the rulings of the court (1) in permitting plea No. 3 to be filed; (2) in rejecting his three special replications thereto; (3) in refusing to reject plea No. 3 after the same had been filed; (4) in rendering judgment for only $147.66, the actual costs awarded on the dissolution of the injunction; (5) in not rendering judgment in his favor for the sum of $1,145.26 decreed to him upon the dissolution of the injunction; (6) in refusing to permit the plaintiff to answer certain questions propounded to him by his attorneys, tending to prove the damages which he had sustained in his business as railroad contractor, and otherwise by reason of the suing out of said injunction; (7) in excluding the bill and answer in the case of Atlantic Giant Powder Co. v. Griffith & Purcell; (8) and in not rendering judgment in favor of the relator for $1,145.26.

Williams & Davidson, for plaintiff in error. R. C. McClaugherty, for defendant in error.

Woods, J., (after stating the facts as above.) It will be observed that the injunction awarded in this cause was not an injunction to stay proceedings on a judgment or decree for the payment of money, and was not therefore one where the bond was required by section 10 of chapter 133 of the Code to be with "condition to pay such judgment or decree and all such costs as may be awarded against the party obtaining the injunction and also such damages as shall be incurred or sustained by the person enjoined in case the injunction be dissolved." The injunction being to prevent J. T. Griffith from collecting from the Norfolk & Western or East River Railroad Company certain estimates then due and soon to become due to the firm of Griffith & Purcell, as well as any other moneys due or to become due to said firm, and to prevent said railroad company from paying such estimates to Griffith, and to...