Van Horn v. Holt

• Decision Date: 03 March 1904
• Parties: VAN HORN v. HOLT et al.
• Court: Montana Supreme Court

30 Mont. 69

VAN HORN

v.HOLT et al.

Supreme Court of Montana.

March 3, 1904.

Appeal from District Court, Custer County; C.H. Lond, Judge.

Action by C. W. Van Horn against John M. Holt and another. Judgment for plaintiff. Defendants appeal. Reversed.

Geo. W. Myers, for appellants.

T.J. Porter, for respondent.

HOLLOWAY, J.

This is an action on an injunction bond. E.C. Howard commenced an action in the district court against the respondent Van Horn, the only object of which was to secure an injunction restraining Van Horn from the commission of certain acts detailed in the complaint in that action. Howard executed an injunction bond in the sum of $300, conditioned as required by law, with the appellants here as sureties. An in junction was issued and served. Van Horn appeared in the action, filed an answer denying the allegations of the complaint, and afterwards moved the court to dissolve the injunction. This motion was sustained, and the injunction dissolved. Thereupon Van Horn commenced this action against the sureties on the injunction bond to recover specific damages alleged to have been sustained by him by reason of the injunction. The complaint alleges the facts set forth above, and, in addition, contains the specific allegation of the items of damages, and prays judgment for $177.50 and costs. To this complaint the defendants (appellants here) filed a general demurrer, alleging that the complaint does not state facts sufficient to constitute a cause of action. This demurrer was overruled, and defendants answered. The cause was tried to a jury, which returned a verdict in favor of the plaintiff for $152.50, and from the judgment entered for that amount and costs the defendants appealed.

Appellants contend that the complaint does not state facts sufficient to constitute a cause of action, and does not support the judgment entered. Respondent contends that, even conceding that the demurrer was well taken, it was waived by the defendants' pleading over and by the verdict, and cites Francisco v. Benepe, 6 Mont. 243, 11 Pac. 637, which he contends supports this doctrine. But an examination shows that the demurrer therein considered was a certain special demurrer, and of the soundness of that decision we make no comment. It is not anywhere held that the objection to a complaint on the ground that it does not state facts sufficient to constitute a cause of action is waived by pleading over, or that such defect in the complaint is cured by verdict. On the contrary, it has been held uniformly that such objection is not waived, but may be urged in this court for the first time. Territory v. Virginia Road Co., 2 Mont. 96;Gillette v. Hibbard, 3 Mont. 412;Largey v. Sedman, 3 Mont, 472;Parker v. Bond, 5 Mont. 1, 1 Pac. 209;Foster v. Wilson, 5 Mont. 53, 2 Pac. 310;Milligan v. Savery, 6 Mont. 129, 9 Pac. 894;Quirk v. Clark, 7 Mont. 31, 14 Pac. 669;whiteside v. Lebcher, 7 Mont. 473, 17 Pac. 548.

The particular objection urged against the complaint is that there is no allegation that the amount of damages claimed to have been suffered by the plaintiff has not been paid. The condition of the injunction bond is “that in case said injunction shall issue, the said plaintiff will pay to the said parties enjoined such damages not exceeding the sum of $300 as such parties may sustain by reason of said injunction, if the said ...