Jesse French Piano & Organ Co. v. Porter , 134 Ala. 302 ( 1901 )

TYSON, J.,

dissenting. — The point of my dissent goes to the proposition laid down in the opinion that an action may be maintained upon an injunction bond immediately upon the rendition of an interlocutory decree dissolving it, notwithstanding the bill may be retained and upon final hearing the injunction reinstated, Just how this conclusion is to be reconciled with the proposition decided that attorney’s fees incurred1 in resisting the effort to reinstate the injunction by appeal to this court, are recoverable in a suit upon the bond, I confess my iniability to see. For if the right of action arose for a breach of the bond immediately upon the rendition of the decree dissolving the injunction, I am unable to1 comprehend how damages subsequently arising can be recovered. Indeed, two of toe case» cited to support the conclusion that counsel fees incurred in resisting toe effort in this court to reverse toe interlocutory decree dissolving toe injunction' are recoverable pointedly sustain the proposition 1 contend for, that until a final determination of the cause in Avhich the writ of injunction is sued out, no1 suit can be maintained upon the bond.

In Bolling v. Tate, it is said: “Injunctions restrain action, and the maintenance or breach of toe bond depends on toe success or failure of toe suit or litigation, in aid of which it is obtained. If toe injunction is made perpetual, the defendant has sustained no legal damages.”

In Jackson v. Millspaugh, the point presented to this court for decision Avas, Avhether counsel fees incurred by Millspaugh and his associates (the parties enjoined) in resisting a reinstatement of the injunction by toe trial court, which had been dissolved upon toe denials in their answers, were recoverable damages upon the injunction bond. Speaking to this point for toe court, Stone, O. J., said: “The necessity for getting rid of the temporary injunction did not end the trouble. If dissolved on motion, and afterwards reinstated on proof, this Avould have left Millspaugh and his associates equally AAdthout right to recover, to the extent relief should be obtained under toe bill. So, the expense toe injunction imposed on them was not limited to getting relief from the temporary injunction. It extended farther and embraced all toe outlay that Avould become necessary to prevent a reinstatement of the injunction.”

The other case cited of Cooper v. Hames, is silent on this point. Thus we see these quotations taken from toe cases relied upon as authority for allowing a recovery of counsel fees for1 services rendered1 in this court in resisting a reinstatement of the injunction, fully and pointedly sustain my contention; that there can be no determinable breach of the condition of the bond until after the final hearing of the cause. And thus it is made to appear that these cases are approved -as authority for allowing counsel fees incurred in -this court and repudiated as authority upon the point under consideration. And Mr. High seems, to have been followed ini preference to them, and in preference to the overwhelming weight of authority to the contrary. And to see, that what lie says, quoted by Justice Dow-dell approvingly, is directly in the teeth of nearly every decision of the other courts of this country, we have but, Li refer to note 4 on page 454 and note 1 on page 455 of the 16 Am. & Eng. Eney. Law (2d ed.), where the cases arc. collected. I have taken the trouble to’ examine these cases and they fully sustain the text, which is in this language: “As to the time when the right of action accrues on an injunction bond, the weight of authority is dearly to' the effect that no' action can be maintained upon a bond- as, ordinarily conditioned, until there has been a final decree in the suit in which the injunction was obtained and the bond executed; and that such right of action does not accrue immediately upon the dissolution'of the injunction, but accrues, only after the final determination of the action in which the injunction was obtained.”

Mr. Spelling in his work on Extraordinary Belief, pointing out the condition of the bond “to pay defendant all damages lie may sustain by the issuing of the injunction!,” says (§ 957) : “As a general and practically universal rule, an action cannot be maintained on an injunction bond until after the final determina,tion of the suit, in which the bond was given.” He is fully sustained by numerous decisions which are cited by him in a note. It will be observed that the condition of the bond of which he is speaking is substantially the same as the one here sued on.

The manifest purpose of requiring the bond is to’ indemnify the person enjoined against loss or damage, by reason of the suing out of the writ of injunction. If it is rightly sued out, that is, if the cause exists which entitles the complainant to- the writ, honesty and justice demand that he should not be made to answer in damages for asserting that right. Whether the cause exists depends upon the proofs, which, of course, cam-¡n¡ot be looked into-, in most cases, until a final submission of the cause. To permit a complainant who has a just cause, to be mulct in damages, because, forsooth, of the false denials in an answer1 sworn to by a defendant for the fraudulent purpose of obtaining a dissolution of the injunction, although upon a final hearing, upon pleadings and proof, he, ha,s fully established his right to the injunction in the first instance, and demonstrated that the denials- in the answer Avere false, Avould he, it seems to- me, mot only to- encourage perjury, hut to sanction it and place a premium upon it. It AArould certainly be subversive of justice and destructive of the object sought to he attained by courts. I can see no force in the suggestion that a permanent injunction may be had on final hearing without the requirement of a bond1. This is true, hut where a preliminary injunction is obtained, no amendment of the bill, upon final hearing is made perpetual, can it be seriously doubted that the 'permanent injunction, as it is called, is the same in junction! that Avas- first sued out? I think not. The difference between the two is only in name. The first is called temporary because the order of the court directing its issuance is subject to revision by the court in which the cause in pending; the second, perpetual or permanent because the decree adjudging the complaimlant’s right to it is final and conclusive between the parties. If the temporary injunction is finally made perpetual or permanent, it is certainly o-f no- consequence whether it had ever been dissolved for a time or whether it had been continued in force throughout the entire stage of the litigation between the parties. The result, ini making it perpetual, is the same in each case. And in order to make a temporary injunction perpetual, the court must necessarily determine that the writ was- rightfully issued in 'the first instance; that is, for cause existing at the time of the filing of the bill, or for cause existing at the time of its issuance, if issued, after hill filed, in aid of preserving or maintaining rights pending, the litigation.