Tutty v. Ryan

• Decision Date: 02 December 1904
• Citation: 78 P. 657,13 Wyo. 134
• Parties: TUTTY v. RYAN ET AL
• Court: Wyoming Supreme Court

78 P. 657

13 Wyo. 134

TUTTY v. RYAN ET AL

Supreme Court of Wyoming

December 2, 1904

Rehearing Denied March 6, 1905, Reported at: 13 Wyo. 134 at 149.

ERROR to the District Court, Crook County, HON. JOSEPH L. STOTTS Judge.

The action was brought by George W. Tutty against J. C. Ryan, A L. Ripley and J. W. Rogers upon an injunction bond. From a judgment dismissing the action plaintiff prosecuted error. The facts are stated in the opinion.

Affirmed.

H. A. Alden and E. E. Enterline, for plaintiff in error.

The objection that the action was prematurely brought should have been raised by answer rather than by plea in abatement, because the common law plea in abatement has been abolished by the codes. (Honeycutt v. Nyquist (Wyo.), 74 P. 90.) It may be assumed, however, for the purpose of the argument that the question was properly raised. It seems to be uniformly held that an action on an injunction bond always lies after the determination of the suit in which the bond was given. (Murfree Off. Bonds, Sec. 391; 2 High on Inj., Sec. 1649; 1 Spelling on Inj., Sec. 957; Kilpatrick v. Haley, 6 Colo. App., 407; Terry v. Trustees, 72 Ill. 476; Penny v. Holberg, 53 Miss. 567; Bank v. Gifford, 65 Iowa 648; Bemis v. Gannett, 8 Neb., 236; Clark v. Clayton, 61 Colo. , 634; Dougherty v. Dore, 63 Cal. 170; Krug v. Bishop, 44 Ohio St. 221; Ry. Co. v. Burke, 43 N.E. 282; Brown v. Edwards, 44 Neb. 361; Asevado v. Orr, 100 Cal. 293; Reddick v. Webb (Okla.), 50 P. 363; Brown v. Min. Co., 32 Kan. 548; Nielsen v. City, 87 Minn. 285; Mitchell v. Sullivan, 30 Kan. 231; Tullock v. Mulvane, 61 Kan. 650; Johnson v. Bouton (Neb.), 77 N.W. 57; Jones v. Ross, 48 Kan. 474; Welch v. Benheim, 6 O. N. P., 33; Thurston v. Haskell, 81 Me. 303; Alaska Imp. Co. v. Hirsch, 119 Cal. 249.) Though the cases cited arose in actions which were instituted after the dissolution of the temporary injunction and before the final judgment had been rendered, they indicate that the action lies immediately upon the determination of the suit in the court in which the bond was given.

The fact that proceedings in error were instituted by the plaintiff in the injunction suit does not deprive the defendant of the right to institute an action on the injunction bond, nor was the action prematurely brought. (Tullock v. Mulvane, 61 Kan. 650; S. C., 184 U.S. 497; Alaska Imp. Co. v. Hirsch, 119 Cal. 249.) The case cited by defendants in error to the contrary from Missouri (Cohn v. Lehman, 93 Mo. 574) is not a parallel case. In that case the appeal was pending at the time suit was brought.

No supersedeas bond was given as provided by Section 4264 of the Revised Statutes, and hence the judgment below was not stayed. Even if the proceedings in error would operate to abate the action, the District Court had no authority to dismiss, for the reason that at the time the action commenced there was no appeal pending and the court should have merely abated the action until the proceedings in error were finally disposed of. We insist that the trial should have been proceeded with, and that the plea interposed by the defendants was entirely insufficient in law on its face.

Nichols & Adams, for defendants in error.

An action is not finally determined until concluded in the court of last resort or until the time for an appeal has elapsed and the defeated party has failed to perfect his appeal. Though the common law plea in abatement may have been abolished by the code, a defendant is not prevented from pleading matter in abatement or in bar, or both, as he may deem proper; and it matters not what the plea is called. A cause of action is considered pending until final determination thereof upon appeal in the appellate court. (Rynearson v. Fredenberg (Mich.), 4 N.W. 187; Bank v. Gifford (Ia.), 22 N.W. 913.) The right of action does not accrue upon an injunction bond until the final determination of the injunction suit, and there is no right to enforce the bond pending an appeal from the judgment in the injunction suit. (1 Spelling on Inj., Sec. 95.) And it is immaterial whether supersedeas was obtained or not. (Cohn v. Lehman, 93 Mo. 574.)

The plaintiff having commenced his action before any cause of action had accrued, and appeal having been perfected within the time given by law, the court properly dismissed the action until such a time as he could show that he had a cause of action against the defendants. Plaintiff has a bond for his damages and is, therefore, presumed to be abundantly protected; but if he should recover upon the bond pending the appeal from the judgment in the injunction suit the defendants would be in no way protected.

There must be a final judgment in the original suit in which the restraining order was issued before suit can be maintained on the injunction bond. (Bemis v. Garnett, 8 Neb., 236; Gray v. Veirs, 33 Md. 159; Penny v. Holberg, 53 Miss. 567; Thompson v. McNair, 64 N. C., 448; Weeks v. Southwick, 12 How. Pr., 170; Dowling v. Polack, 18 Cal. 625.) We insist that a case is not finally determined until one of the parties to the suit could successfully plead res judicata if the same facts are set up in another case. And so long as a case is pending on appeal a party could not so plead. He might plead the pendency of another cause in another court for the same relief, but he could not successfully plead res judicata. (Henessy v. Smelting Co. (Wash.), 74 P. 584.)

POTTER, JUSTICE. CORN, C. J., concurs.

OPINION

POTTER, JUSTICE.

This is a suit instituted in the District Court in and for Crook County, upon an undertaking given upon the allowance of a temporary restraining order in an action brought against the plaintiff in error herein by one J. C. Ryan, one of the defendants in error. The sole purpose of that action was to enjoin the diversion and use of certain springs, to the water of which as tributary to a certain stream the said Ryan claimed a prior appropriation.

Upon the final hearing of said injunction suit in the District Court, there was a general finding for the defendant therein, and it was ordered that the temporary restraining order be and the same was thereby dissolved, that it ought not to have been granted, and that defendant therein "go hence without day" and recover his costs. Said judgment was rendered June 23, 1903. The present suit was commenced October 16, 1903, by the plaintiff in error against the said Ryan as principal and the other defendants in error as sureties in said undertaking to recover damages alleged to have been sustained in consequence of the temporary restraining order.

To the petition alleging the allowance and issuing of the injunction, the execution of the undertaking, the judgment of the District Court, and the damages claimed to have been suffered on account of the injunction, and their nonpayment, the defendants interposed a pleading styled "Plea in abatement," alleging that the judgment of the District Court was not final and setting forth in detail various steps that had been taken by the defendant Ryan, the plaintiff in the injunction suit, to commence and perfect proceedings in error in the Supreme Court of the state for the review and reversal of the judgment of the District Court in said suit; from which it appears that after the commencement of this action upon the undertaking, a proceeding in error had been duly perfected in the Supreme Court, and was then pending therein, wherein a reversal of the judgment in the former suit was sought, but it does not appear that any supersedeas bond was given. The plea prayed that the action may be abated. To the plea in abatement, so-called, the plaintiff filed a general demurrer, which was overruled by the court; and, the plaintiff refusing to plead further, the court entered judgment that the action be dismissed and that defendants recover their costs. The plaintiff complains of that judgment on error.

Counsel for plaintiff in error question, in the first place, the right of a defendant to file a plea in abatement by that name, on the ground that such a plea has been abolished by the code. Section 3532, Revised Statutes, declares that the only pleadings allowed are: (1) Petition. (2) Demurrer. (3) Answer; which, when affirmative relief is demanded therein, may be styled cross-petition. (4) Reply. But, for the purpose of the argument, counsel assume that the plea properly raised the question as to the right to maintain the action, and do not seem to insist upon the objectionable title of the pleading. We need not consider whether a pleading to be technically styled a plea in abatement is ever authorized under the code, since the pleading before us contains the essentials of an answer alleging facts deemed sufficient to abate the action, and it may properly be regarded as such, notwithstanding the name given it by the pleader. It may be observed, however, that generally under the code procedure an answer seems to be considered the appropriate medium for presenting issuable facts either in abatement or bar of the action. (See 2 Abbott's Trial Briefs on Pleadings, pp. 999-1001, note 6.)

The important inquiry presented is whether the pendency of the proceeding in error for the review of the judgment in the injunction suit constituted a good defense in abatement of the action on the undertaking, the said error proceeding having been instituted within the period prescribed by the statute.

The statute requires the undertaking in case of an injunction to be given "to secure to the party enjoined the damages he may sustain if it be finally decided that the injunction ought not to have been granted. " (R. S., Sec. 4043.) And the condition of the undertaking sued on is that the obligors will pay the defendant, his heirs and administrators, "such damages as he may sustain not...