The Wabash Railroad Company v. McCabe
| Decision Date | 16 December 1893 |
| Citation | 24 S.W. 217,118 Mo. 640 |
| Parties | The Wabash Railroad Company, Appellant, v. McCabe et al |
| Court | Missouri Supreme Court |
Certified from St. Louis Court of Appeals.
Reversed and remanded.
F. W Lehmann and G. S. Grover for appellant.
(1) The defendants McCabe and McKeag were not entitled, under the evidence in this case, to the assesment of any damages upon the dissolution of the injunction, either as counsel fees or otherwise. Buford v. Keokuk Northern Line, 3 Mo.App 159; St. Louis v. Alexander, 23 Mo. 483; Bircher v. Parker, 40 Mo. 118; Uhrig v. St. Louis, 47 Mo. 528. (2) If any damages were recoverable by these defendants, upon the facts here proved, it could not exceed ten per cent. of the amount released by the dissolution of the injunction. Roach v. Burnes, 33 Mo. 319; Railroad v. McCabe, 47 Mo.App. 346, and cases cited; Statutes, 1845, chap. 81, sec. 13, p. 580; art. 9, sec. 12, Acts, 1849, p. 85; 2 Revised Statutes, 1889, chap. 84, sec. 5500, p. 1314; Trust Co. v. Steward, 21 S.W. 793.
Leonard Wilcox for respondents.
(1) The court, in the absence of a "perfect transcript" or an abstract of the entire record in the cause, will presume that the judgment of the court below was correct, and affirm the judgment below. Greeley v. Bank, 103 Mo. 221; Jayne v. Winn, 98 Mo. 404; Bank v. Davidson, 40 Mo.App. 421. (2) The defendants McCabe and McKeag were entitled to recover damages upon the dissolution of the injunction. State v. Kingsbury, 33 Mo.App. 519; Revised Statutes, 1889, sec. 838; State v. Laws, 46 Mo. 108; Halloway v. Halloway, 103 Mo. 284, 285; Hill v. Bell, 111 Mo. 35. (3) The statutory damages of ten per centum on the amount released by the dissolution are not exclusive. Kennedy v. Hammond, 16 Mo. 341; St. Louis v. Alexander, 23 Mo. 521; Hale v. Meegan, 39 Mo. 272, 277; Revised Statutes, 1835, p. 314, sec. 11; Revised Statutes, 1825, p. 441.
Sale & Sale also for respondents.
The word "damages," as used in section 5500 of the Revised Statutes of Missouri has reference to damages on the money, and not to damages on the injunction bond. It has no reference whatever to compensation, but solely to punishment. It is equivalent in meaning to "penalty," and has the same significance as the word "damages" where it is used in section 2305 of the Revised Statutes of 1889, permitting the court to award damages on the affirmance of appeals. 2 Morehead and Brown's Dig. Laws of Ky. (1795-1834), p. 811. Fawcett v. Pendleton, 5 Bibb. 136; Yantis v. Lyon, 3 J. J. Marshall (Ky.), 152; Thomas' Trustees v. Brashears, 4 Monr. 65; Hening's Statutes at Large (Va.), 1803-1808, p. 98; Claytor v. Anthony, 15 Gratt. 518; Geyer's Dig. Laws of Mo. 232; Toulmin's Dig. Laws of Alabama, 1823, p. 491; Revised Code of Mississippi, 1824; Revised Statutes of Mo. 1825, p. 441; Yantis v. Burdett, 4 Mo. 4; 3 Chase's Stat. of Ohio, 1788-1833, p. 1700; Greiner's Louisiana Code of Practice, p. 74; Landry v. L'Eglise, 3 La. Rep. 221; Revised Statutes, 1835, p. 314; Kennedy v. Hammond, 16 Mo. 341; St. Louis v. Alexander, 23 Mo. 521; Hale v. Meegan, 39 Mo. 521. That there is a distinction between the statutory damages and the damages awarded on the bond is clear from the statute itself. It has been held in this state that there is no liability upon the injunction bond, except for such sum of money as shall have been adjudged against the plaintiff in the injunction proceeding. Dorris v. Carter, 67 Mo. 544; Corder v. Martin, 17 Mo. 41. It follows from these adjudications that the damages on an injunction bond are whatever the court, in the injunction proceedings, may have awarded against the plaintiff therein.
Plaintiff sued out an injunction against the defendant McCabe and his codefendant McKeag, who was his attorney, and procured a restraining order from Hon. Jacob Klein, judge of the circuit court within and for the city of St. Louis, enjoining the collection of a judgment amounting to $ 15.70 which McCabe had recovered before a justice of the peace against the plaintiff. On a hearing of the cause the injunction was dissolved, and on motion of defendants damages to the amount of $ 25.00 for attorney's fee was assessed in their favor against plaintiff and its securities on the injunction bond, from which judgment plaintiff appealed to the St. Louis court of appeals, where by a majority opinion the judgment of the court below was reversed, but, because of a dissenting opinion by one member of the court, the case was certified to this court. A full and complete statement of all the facts in the case will be found in the opinion of the court in 47 Mo.App. 346.
The only question for the consideration of this court is with respect to the proper construction of section 5500, Revised Statutes, 1889. Said section reads as follows: "Upon the dissolution of an injunction, in whole or in part, damages shall be assessed by a jury, or if neither party requires a jury, by the court; but if money, or any proceedings for the collection of any money or demand, shall have been enjoined, the damages thereon shall not exceed ten per cent. on the amount released by the dissolution, exclusive of legal interest and costs."
The court of appeals held that the damages to be assessed was ten per cent. on the amount enjoined which amounted to $ 1.57.
The defendants employed a competent attorney whose services plaintiff conceded to be worth the amount awarded by the circuit court in assessing the damages on the injunction bond.
The statute as it stood at the time, with respect to assessment of damages on the dissolution of injunctions enjoining sales by trustees under deeds of trust, has received construction by this court in Kennedy's Adm'x v. Hammond, 16 Mo. 341; Hale v. Meegan, 39 Mo. 272. Each one of those cases was a proceeding to enjoin a sale under a deed of trust, and it was ruled in both of them that the statute with regard to the assessment of damages on the dissolution of injunction and limiting the damages to ten per cent. on the amount released did not apply in cases of that kind.
At the time those cases were decided the statute read as follows: "But if money shall have been enjoined the damages thereon shall not exceed ten per cent. on the amount released by the dissolution exclusive of legal interests and cost." Subsequently, however, in the revision of 1855, the statute was amended by inserting the words "or any proceedings for the collection of any money or demand," so as to make it read as hereinbefore set out, and it has thus remained from that time up to the present without any material change or modification.
All of the decisions cited seem to have made, by implication at least, a distinction between cases in regard to the assessment of damages on the dissolution of an injunction in whole or in part wherein sales by trustees under deeds of trust are enjoined, which are executed to secure the payment of money, and when the proceeding is by execution. All such cases are proceedings for the collection of money, whether by execution or sale under deed of trust, and the statute as amended was evidently intended to include both. What else could have been the purpose? For as it stood before the amendment it clearly included proceedings by execution. It does not say legal proceeding, but it does say any proceeding for the collection of money. Had it been intended to restrict the statute in its meaning to legal proceedings, it is to be presumed that it would have so provided, and whether by execution or sale under deed of trust the end to be accomplished is the same.
The collection of money on execution may be enjoined as in this case,...
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