Officer v. Morrison , 54 Or. 459 ( 1909 )

Opinion by

Mr. Chief Justice Moore.

The question to be considered is whether the costs and disbursements awarded to Officer when the suit against him was dismissed, can be recovered in an action on the undertaking for an injunction which conformed to the requirement of the statute. The enactment, regulating the granting of a restraining order, is as follows:

“An injunction may be allowed by the court, or judge thereof, at any time after the commencement of the suit and before decree. Before allowing the same, the court or judge shall require of the plaintiff an undertaking, with one or more sureties, to the effect that he will pay all costs and disbursements that may be decreed to the defendant, and such damages, not exceeding an amount therein specified, as he may sustain by reason of the injunction if the same be wrongful or without sufficient cause”: Section 418, B. & C. Comp.

In Drake v. Sworts, 24 Or. 198 (38 Pac. 563), in construing a statute relating to undertakings for attachment, in which the language was almost identical with the foregoing enactment, towit, “That the plaintiff will pay all costs that may be adjudged to the defendant and all damages which he may sustain by reason of the attachment; if the same be wrongful or without sufficient cause, not exceeding the sum specified in the undertaking” (Section 298 B. & C. Comp.), it was held that the sureties were liable to the defendant on an undertaking for an attachment which contained the statutory condition in case a judgment was rendered in favor of such defendant for all the costs in the action, and not simply for such expenses as he may have incurred on account of the attachment. In deciding that case Mr. Justice Bean says: “Under this statute there are plainly two obligations assumed by the parties to an undertaking for attachment: (1)' That the plaintiff will pay all costs, which, of course, includes disbursements that may by the court in which the action is tried be adjudged to the defendant; and (2) if the attachment is- wrongful and without sufficient cause, to pay such damage as the defendant may sustain by reason of the attachment. These are separate and distinct obligations, independent of each other, the latter of which may happen without the former, and even if the plaintiff should prevail in the action. This, it seems to us, is the plain and obvious meaning of the statute, and so clearly expressed that it cannot be construed so as to limit the obligation to the costs incurred in the attachment. We are aware, of course, that this construction makes the undertaking for an attachment a security for costs in case the defendant prevails in the action, but it was wholly within the power of the legislature to impose such conditions if the plaintiff is to seize the defendant’s property upon an attachment even before a cause of action has been established, and the court is bound to give the statute effect, according to its language and evident intent.” We think the decision rendered in that case is controlling herein. Though the undertaking in the case at bar limits the recovery of damages to the sum of $100, no restriction is placed on .the costs and disbursements which may be obtained when an injunction is dissolved.

For the error committed in sustaining the demurrer and dismissing the action, the judgment is reversed and the cause remanded for such further proceedings as may be necessary, not inconsistent with this opinion'.

Reversed.

Mr. Justice King, having been of counsel for one of the parties to the original suit, took no part in the consideration hereof.