Pierce v. Campbell , 217 Mo. App. 179 ( 1925 )

^* Headnotes 1. Injunctions, 32 C.J., Section 746; 2. Injunctions, 32 C.J., Section 735; 3. Injunctions, 32 C.J., Sections 735, 746, 772 (Anno). Upon the dissolution of a temporary injunction the defendants under section 1959, Revised Statutes of Missouri 1919, had their damages assessed by a jury resulting in a verdict in their favor for $100. From the resulting judgment the plaintiffs appeal.

Plaintiffs below resided in Vandeventer Place in the city of St. Louis, and instituted a suit in the circuit court of said city against one Adolph E. Branham and against M.C. Campbell wherein it was alleged that the defendants were conducting a boarding house at 36 Vandeventer Place in violation of certain restrictions limiting the use of the premises to that of a private dwelling house. A temporary injunction restraining the said defendants from a further violation of the alleged restrictive covenants was granted upon the filing of a bond in the sum of $7500 conditioned as required by law. Thereafter Rosa D. Campbell, wife of the defendant M.C. Campbell, was made a party defendant in the suit. She entered her appearance and the temporary injunction heretofore mentioned was made effective as to her also.

Upon a hearing of the case the following decree was entered of record:

"Now at this day come again the parties hereto by their respective attorneys; thereupon the further trial of this cause progressed before the court upon the merits, upon the plaintiffs' petition for a permanent injunction and upon the separate answers of each of the defendants and the plaintiffs' replies thereto, and also for hearing upon the respective separate motions of defendant Marion C. Campbell and of defendant Rosa D. Campbell to dissolve the temporary restraining order issued by the court on July 25, 1923, and all and singular under the pleadings and the evidence the court dothfind that said temporary restraining order was properly andprovidently issued, but that since the issuance thereof the twodefendants Marion C. Campbell and Rosa D. Campbell have removedfrom the presimes at No. 56 Vandeventer Place, . . . and thatneither of them are residing therein nor have any interest insaid premises at this time.

"Wherefore, it is ordered by the court that said temporary restraining order as to said defendants Marion C. Campbell and Rosa D. Campbell be discontinued and dissolved, but at defendants' costs and with prejudice to any right by said defendants Campbell, or either of them to maintain any action or proceeding for damages against the plaintiffs or the sureties upon the bond given by plaintiffs upon the issuance of such temporary restraining order.

"And all and singular under the pleadings and the evidence thecourt, upon the merits of this action, does find the issues forthe plaintiffs and against all of the defendants.

"Wherefore, it is by the court considered, ordered and decreed that the defendant Adolphus Branham, his servants, agents and lessees, or any person for or under said defendant, Adolphus Branham, be perpetually and permanently restrained and enjoined from using said lots and premises. . . . as a boarding or lodging house, or for any other purpose than a private dwelling house, or for any trade or business of any kind, dangerous, noxious or offensive to the neighboring inhabitants, or for any trade or business whatsoever, and from permitting more than one proper family from using such private dwelling house.

"And it is further considered, ordered and decreed by the court that the plaintiffs have and recover of the said defendant Branham their costs, and that execution issue therefor.

"And it is further considered, ordered and decreed by the court that the defendants Marion C. Campbell and Rosa D. Campbell be finally discharged, but that plaintiffs have and recover of said last-named defendants their costs in this behalf laid out and expended and that execution issue therefor."

In light of this decree appellants urge that their demurrer offered at the close of defendants' case should have been sustained. The point is well taken.

Section 1959, Revised Statutes of Missouri 1919, cannot be viewed as creating a right to damages in a defendant who was in fault at the time the injunction was issued and whose fault therefore created the necessity for the injunction. It has always been the law and our said statute has not changed it, that where an injunction is rightfully awarded but afterwards properly dissolved upon matters done or arising after it, no damages can be recovered (Southerland on Damages, Vol. 2, p. 78), and that to recover damages on an injunction bond it must be made to appear that such injunction was wrongful in its inception or at least was continued, owing to some wrong on the part of plaintiff. Therefore parties whose wrongdoing caused the issuance of the writ cannot justly complain of not being allowed expenses in an action made necessary to remedy or readjust a situation for which they alone are responsible. [Scott v. Frank (Ia.), 96 N.W. 764; Town of Dadeville v. Wynn (Ala.) 70 So. 197; Massie v. Sebastian (Ky.), 4 Bibb. 437; Findley v. Carson (Ia.), 66 N.W. 759; N.Y., W.S. B. Ry. Co. v. Omerod, 29 Hun. 274; Palmer v. Foley,71 N.Y. 106.]

In this State as early as Buford v. Packing Co.,3 Mo. App. 159, l.c. 172, it was ruled that the principle upon which counsel fees are allowed upon dissolution of an injunction is based upon the fact that the defendant has been compelled to employ aid in getting rid of an unjust restriction forced upon him by the act of the plaintiff. In the instant case, however, in a trial of the cause, upon the merits, and also upon the respective separate motions of the defendants to dissolve the temporary injunction the court found that the temporary injunction had been properly and providently issued, and found the issues in favor of plaintiffs and against the defendants. It thus clearly appears that in said decree the court made a final determination of what the rights of the parties litigant were at the commencement of the suit and when the injunction was allowed.

There can be no question but that the final decree entered in the injunction suit, so far as matters that were properly before the court and therein decided, must be regarded as resadjudicata in this action on the injunction bond. [Shenandoah National Bank v. Read, 86 Iowa 136, 53 N.W. 96; Scott v. Frank, supra; Campbell v. Ayras, 6 Iowa 339; Hopkins v. State,53 Ind. 502; Garrett v. Logan, 19 Ala. 344; Town of Dadeville v. Wynn, supra; 16 Amer. Eng. Encyc. Law (2 Ed.), 458.]

Whilst ordinarily the dissolution of an injunction amounts to a determination that the injunction has been improperly granted and a right of action on the injunction bond immediately accrues to the defendants, yet this is not true where as here the decree itself specifically finds the issues for the plaintiffs and against all of the defendants and that the temporary injunction was properly and providently issued, but because by the action of the defendants since the issuance of the injunction the necessity for its continuance, or being made permanent, has been removed the injunction is dissolved but at defendants' costs.

Whether the court had jurisdiction to pass upon the defendants' right to damages upon the injunction bond as it attempted to do in the decree upon the hearing of the case upon its merits is a matter that we need not and do not pass upon. We do rule that the final decree properly passed upon the merits of the case, and that such findings must be held to be res adjudicata in this action on the injunction bond.

Since from the facts found in the decree it conclusively appears that there has been no breach of the condition of the bond, it follows that the defendants herein have no right of action thereon. The judgment should be and the same is hereby ordered reversed. Daues, P.J., and Nipper, J., concur.