Price Baking Powder Co. v. Calumet Baking Powder Co. , 82 Mo. App. 19 ( 1899 )

ELLISON, J.

This case comes here on an appeal from judgment of assessment of damages arising from a temporary order of injunction issued by the trial judge in vacation and which was dissolved.

It appears that the judge in vacation granted a temporary writ on the execution of a sufficient statutory bond with sureties, at the same time allowing 'the party defendant to appear before him in chambers in ten days and move to dissolve the temporary order. The parties duly appeared and the judge recalled the order on the ground (as found to be stated in the motion) “that the petition does not state facts sufficient to constitute a cause of action, and that there is no equity in the petition and no cause for equitable relief is stated therein.” Prior to the next succeeding term of the circuit court, in vacation, a motion was made to assess damages and the court, after a hearing in term time, allowed $250 as attorneys’ fees and $253.03 as expenses of witnesses attending before the judge in vacation and the procuring of affidavits to present on the hearing of the motion to dissolve. . There was no final hearing.of the original cause of action. But at the term of court sueceeding the filing of the petition and granting the temporary writ, plaintiff voluntarily dismissed the bill.

There can be no assessment of damages until a liability has arisen on the bond. Por the assessment of damages is an incident to the bond. City of St. Louis v. Gas Light Co., 82 Mo. 349.- And no-liability can arise on the bond “before final decree in the case in which such bond was given.” Cohn v. Lehman, 93 Mo. 574. In cases like the present on a final hearing the court may conclude that the view taken was erroneous and may find that the plaintiff was, at the time the writ was issued, entitled to the temporary injunction.

In Brown v. Mining Co., 32 Nan. 528, a temporary writ was granted and afterwards dissolved. Suit was then begun on the bond before a final hearing was had on the case. It was held that a suit could not be maintained “on an undertaking given on the issuing of a temporary injunction, until the final trial and judgment in the suit.” And so the same was held, under like circumstances, in the case of Clark v. Clayton, 61 Cal. 634. It is true that by the terms of section 5500, Revised Statutes 1889, 'an assessment of damages may be had “upon the dissolution of an injunction in whole or in part.” But that expression of the statute means a final dissolution, whether of the whole injunction granted or only a part thereof; And such must have been the view of the supreme court in Cohn v. Lehman, supra. The same remark will apply to section 5498, prescribing that the condition of an injunction bond shall be to pay all damages and costs “that shall be adjudged against him if the injunction shall be dissolved.” That is to say, after a final hearing.

But, as before stated, plaintiffs -at the term of court following the filing of the petition, voluntarily dismissed the same and this is regarded as a final adjudication against the right to an injunction. It is, so far as fixing liability on the bond is concerned, equivalent to -a final hearing. 2 High on Injunctions, sec. 1649a.

It might be said that since in this case defendant filed its. motion for assessment of damages in vacation and before the dismissal of the bill, it was premature. However that may bo it is enough that plaintiff answered the motion and tried the question of damages without objection on this head. The foregoing considerations answer plaintiff’s contention that the motion was premature.

On the trial of the motion the bond was not introduced in evidence. Plaintiffs contend it should have been. It is, however, found set out in the record, put in the transcript by the clerk as a part of the record proper. The motion for new trial does not raise the question and it can not be considered. The question of ithe evidence failing do make or support a case for defendant is not set up in the motion. Fox v. Young, 22 Mo. App. 386; Putnam v. Railway, 22 Mo. App. 589.

"We are, however, satisfied that the position taken ,by plaintiff as to the allowance of damages is well founded. The allowances were separated; stated to be for counsel fees, and for expenses of witnesses and depositions. The expense of counsel “ was necessary in the matter of obtaining - a dissolution of the restraining order and as such was properly allowed. But when it is remembered ' that the question of dissolving' or recalling the restraining order depended solely on the petition and was so considered at the hearing of the motion to dissolve and so adjudged by the trial judge, it becomes apparent there was no necessity for the expense of witnesses and depositions, and no damage in that respect should have been assessed. Ellwood Mfg. Co. v. Rankin, 70 Iowa, 403; Lawrence v. Trainer, 136 Ill. 474, and cases cited. The cases cited by defendant as being contrary are not considered in point.

We will, therefore, order the affirmance of the judgment as to the allowance of $250 counsel fees and reverse it as to the allowance of $253.03 for other expenses. Costs of this appeal to be taxed against defendant.