Wakefield v. Griffiths

• Decision Date: 25 October 1927
• Docket Number: 4679
• Citation: 45 Idaho 51,261 P. 665
• Parties: B. H. WAKEFIELD and J. S. CHASE, Appellants, v. LEWIS E. GRIFFITHS and A. F. NELSON, Respondents
• Court: Idaho Supreme Court

261 P. 665

45 Idaho 51

B. H. WAKEFIELD and J. S. CHASE, Appellants, v. LEWIS E. GRIFFITHS and A. F. NELSON, Respondents

No. 4679

Supreme Court of Idaho

October 25, 1927

INJUNCTION-CHATTEL MORTGAGES-FORECLOSURE-BOND REQUIRED-DISSOLUTION OF TEMPORARY INJUNCTION, EFFECT-COUNSEL FEES AND COSTS-NO RECOVERY FROM SURETIES.

1. Decision at conclusion of trial on the merits in action to enjoin sale under chattel mortgage that injunction should be dissolved did not amount to finding that plaintiff mortgagors were not entitled to the temporary injunction when granted and that it was improperly issued; the judgment showing that mortgagees were claiming more than was due them on the mortgage and that they had caused the sheriff to seize and notice for sale property not covered by the mortgage, which under C. S., sec. 6385, relative to court contest, with injunction, if necessary, of right to foreclose chattel mortgage, as well as amount claimed to be due gave mortgagors right to injunction to restrain the sale until amount due and property covered by the mortgage was finally determined.

2. Bond is required on issuance of injunction under C. S., sec. 6385 on contest of right of chattel mortgagee to foreclose; it not being among the cases enumerated by sec. 6772, which states definitely when an undertaking on the issuance of an injunction shall not be required.

3. The ultimate dissolution of temporary injunction after trial on the merits does not amount to finding that temporary injunction was not properly issued; generally it is dissolved as a matter of course after the rights of the parties have been determined.

4. Where temporary injunction is granted and no attempt is made by motion or appeal to dissolve it or obtain decision that its issuance was improper or unnecessary, but the only resistance is by defending at the trial on the merits, counsel fees and costs cannot be recovered from the sureties on the injunction bond.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to recover damages and attorneys' fees on an injunction bond. Judgment for defendants. Affirmed.

Judgment of the trial court affirmed, with costs to respondent. Petition for rehearing denied.

Van de Steeg & Breshears, for Appellants.

In an action on an injunction bond given to obtain an injunction which has been dissolved, matters going to the merits of the injunction proceeding cannot be pleaded and proved as a defense. Therefore, the second, fourth, fifth and sixth grounds of defendant's motion for an instructed verdict are eliminated. (Fullerton v. Pool, 9 Wyo. 9, 59 P 431; 2 High on Injunctions, 4th ed., par. 1652; 32 C. J., p. 453, sec. 782b; Revell v. Smith, 25 Okla. 508, 106 P. 863; Boise City v. Randall, 8 Idaho 119, 66 P. 938; Citizens' Trust & Guaranty Co. v. Ohio Valley Tie Co., 138 Ky. 421, 128 S.W. 317.)

The obligation of the defendant became absolute by the terms of the bond when the court in the injunction suit "finally decided that the plaintiff was not entitled thereto." (Dangel v. Levy, 1 Idaho 722.)

What the final decision in the injunction suit really was is to be ascertained from the entire record of the case, and particularly from the findings of fact and conclusions of law. (Caldwell v. Wells, 16 Idaho 459, 101 P. 812; Charters v. Fidelity & Deposit Co., 32 Idaho 612, 186 P. 921; 32 C. J. p. 462, sec. 801.)

The liability of a surety on an injunction bond is measured by the terms of his contract. (Scholtz v. American Surety Co., 35 Idaho 207, 206 P. 187; Rowland v. Kellogg Power & Water Co., 40 Idaho 216, 233 P. 869.)

C. S., sec. 6385, does not give the right to injunction without injunction bond; no more so than sec. 6769, standing by itself, authorizes an injunction without the requirement of bond. And the rule is well established in this state that a restraining order or injunction is inoperative unless a bond be required and furnished. (MacWatters v. Stockslager, 29 Idaho 803, 162 P. 671; Rowland v. Kellogg Power & Water Co., supra.)

Injunctive relief under C. S., sec. 6385, is not within the recognized exceptions, and, if deemed necessary and demanded by a litigant, requires a bond. (Murphy v. Russell & Co., 8 Idaho 133, 67 P. 421.)

One who has obtained an injunction and thereby stayed his adversary's proceedings is too late to set up as defense in an action on the bond want of jurisdiction to grant the injunction. (32 C. J., p. 254, sec. 788, p. 453, sec. 783, and cases cited; 14 R. C. L., sec. 179; 2 High on Injunctions, sec. 1652; Hamilton v. State, 32 Md. 348; Alaska Imp. Co. v. Hirsch, 119 Cal. 249, 47 P. 124, 51 P. 340; American Exchange Nat. Bank v. Goubert, 135 A.D. 371, 120 N.Y.S. 397.)

H. A. Griffiths, for Respondents.

The right of the mortgagee to foreclose, as well as the amount claimed to be due, may be contested in the district court by any person interested in so doing, for which purpose an injunction may issue if necessary. (C. S., sec. 6385; Murphy v. Russell, 8 Idaho 133, 67 P. 421; Ferrel v. Coeur d'Alene etc. Transp. Co., 29 Idaho 118, 157 P. 946; Charters v. Fidelity & Deposit Co., 32 Idaho 612, 186 P. 921.)

If the injunction was ancillary to some main relief and no attempt is made to dissolve it or to obtain a decision that its issuance was improper or unnecessary, either by motion or by appeal, and the only resistance thereof is by defending in the main action, no liability could attach to the surety on the injunction bond. (Charters v. Fidelity & Deposit Co., supra; Ferrel v. Coeur d'Alene Transp. Co., supra.)

C. S., sec. 6385, where the right to foreclose or the amount claimed to be due is in dispute, the mortgagor is entitled to an injunction to stop the foreclosure by notice and sale if necessary, as a matter of right and without the giving of bond, terms or conditions. (Murphy v. Russell, supra; Watts v. Greenwood, 49 Utah 118, 162 P. 72; Pearson v. Glenn Lumber Co., 55 Okla. 280, 160 P. 48; Black v. Howell, 56 Iowa 630, 10 N.W. 216.)

FEATHERSTONE, Commissioner. Babcock and Adair, CC., concur.

OPINION

FEATHERSTONE, Commissioner.--

This action was brought by appellants to recover from respondents, as sureties on an undertaking for an injunction, the sum of $ 525 as damages and $ 75 as attorneys' fees, and interest and costs. No service was had on the respondent Nelson and the case was dismissed as to him. The case was tried to a jury, and on the completion of appellants' case respondent moved the court to instruct the jury to return a verdict for respondent, which motion was sustained by the court and the jury rendered its verdict for respondent and judgment was thereupon entered on said verdict, from which judgment this appeal is taken.

The record shows that B. H. Wakefield and J. S. Chase, being the holders and owners of a certain chattel mortgage for the principal sum of $ 1,500, given by W. R. Bates and Audney Bates, his wife, covering the crops grown on certain lands, did on December 5, 1921, place an affidavit in the hands of the sheriff of Canyon county, Idaho, with instructions to foreclose the said chattel mortgage above mentioned by notice and sale, and out of the proceeds to pay the said $ 1,500 alleged to be due on the said chattel mortgage.

The affidavit and instructions directed the sheriff to sell other property besides that described in the chattel mortgage.

The sheriff, acting upon the said affidavit and instructions, took possession of 600 sacks of potatoes, some of which were not covered by said mortgage, and noticed the same for sale to pay the said sum of $ 1,500 and costs of foreclosure.

On December 9, 1921, W. R. Bates and Audney Bates commenced an action in the district court of Canyon county, against B. H Wakefield, J. S. Chase and B. W. Kinney, as sheriff...