Thurston v. Haskell

• Decision Date: 09 February 1889
• Parties: THURSTON et al. v. HASKELL et al.
• Court: Maine Supreme Court

17 A. 73

81 Me. 303

THURSTON et al.

v. HASKELL et al.

Supreme Judicial Court of Maine.

Feb. 9, 1889.

Report from supreme judicial court, Waldo county.

Action by Mary Thurston et al. against Benjamin F. Haskell et al., to recover on a bond given by defendants to procure an injunction in equity, the injunction having been denied after a general hearing on the bill. After this suit was begun, all other damages, except counsel fees, were adjusted and the case was reported to the law court for the determination of two questions: First, whether the action was maintainable; and, second, if so, whether counsel fees were recoverable as part of the damages.

J. Williamson, for plaintiffs. W. P. Thompson and R. F. Dunton, for defendants.

EMERY, J. The now defendant Haskell brought a bill in equity against the now plaintiffs the Thurstons praying to have them permanently enjoined from using certain waters. Pending the bill, the complainant therein procured a preliminary injunction of like nature, upon filing a bond to the then respondents, as provided in Rev. St. c. 77, § 32. The condition in the bond was expressed to be that the complainant should pay all damages and costs caused by such preliminary injunction. The then respondents made no effort to procure a dissolution of the preliminary injunction, but contested the equity suit generally. The equity suit was reported to the law court, which sent down a rescript denying the injunction, and dismissing the bill, with costs. No formal decree was signed and filed at the nisi prius term, but the rescript was filed, and the entry made on the docket, as ordered by the law court, and execution was issued to the then respondents for their costs. The then respondents now bring this action on the bond given for the preliminary injunction and the action is reported to the law court for the determination of two questions:

1. The now defendants claim that this action is prematurely brought, and allege, as a reason, that the equity suit is not yet ended, no final decree having yet been made by a single justice at nisi prius. We do not think such a decree is necessary to end an equity suit under such circumstances. The judgment of the law court in this case was not an affirmation of any rights or duties to be declared and enforced by an executive decree. It was a simple negation of the complainant's claim. It stopped the suit,—dismissed, ended it. The entry on the docket was a decree to be formulated by the clerk in...