Carpenter v. Fisher A. , 68 N.H. 486 ( 1896 )

As a general rule, equity having acquired jurisdiction of a cause disposes of all questions the decision of which is necessary to its tidal determination. Eastman v. Bank, 58 N.H. 421; Moody v. Lucier, 62 N.H. 584,587, 588. The question of the amount of damages caused to a prevailing defendant by a preliminary injunction is incidental to the principal issues. It is to be determined upon equitable principles, in view of all the circumstances of the case. In an investigation of the merits, all or nearly all the evidence affecting the damages is heard and considered. Neither party has a right to a trim of the question by the jury. Such a trial might, and in many cases would, involve a retrial of the entire cause. The parties should not be subjected to this needless expense. Although in a few instances the question of the amount of the damages has been submitted to the jury or otherwise determined in an action at law on the bond, it has been for the reason that neither party objected, and the attention of the court was not called to the subject. Derry Bank v. Heath,45 N.H. 524; Towle v. Towle, 46 N.H. 431; Solomon v. Chesley, 59 N.H. 24; Jackman v. Eastman, 62 N.H. 273; Gage v. Porter, 64 N.H. 619. Generally, the court that hears the principal cause has, if requested, determined the question. It is the proper practice. In an action at law on the bond, the parties are entitled to trial by jury if the damages claimed exceed $100. Trials by jury are expensive to the public. One object of the amendment of the constitution, adopted in 1877, depriving parties in civil actions of the right of trial by jury "in cases in which the value in controversy does not exceed $100 and the title to real estate is not concerned" (Bill of Rights, art. 20), was to save the public expense of such trials in that class of cases. Since that time jury trials in those cases have not been allowed, though desired and moved for by both parties, except for special and extraordinary reasons. It does not appear that there is any reason for sending the question of damages in the present case to a jury. Upon the motion of either party, the court that heard the cause would have determined what, if anything, Fisher should pay to Carpenter to indemnify him for the injury caused to him by the injunction. If an action on the bond should be necessary to obtain satisfaction of the amount adjudged due, no question, in the absence of fraud, would be open to the defendants except that of its execution. Upon the motion of either party, the original action may be brought forward, the question of Carpenter's damages be determined by the court, and execution for the sum found his due be issued against Fisher.

It does not follow that the present action was improvidently brought. It may be necessary to secure the payment of the judgment that may be rendered against Fisher. It will stand continued until the amount Fisher ought to pay is determined and an execution for that sum is returned unsatisfied, or until it is otherwise made apparent that the plaintiff must rely for indemnity upon the obligation of the sureties.

If any judgment that may be obtained against Fisher is satisfied, the question of the jurisdiction of the court in this action will not arise. Until it does arise, it need not be considered. To this suit Fisher is not a party. Whether, being interested in the result and perhaps concluded, as between him and the defendants, by a judgment against them, he has a legal right to appear and raise the question of jurisdiction or join with the defendants in raising it, or whether he may be lawfully refused permission to appear for that purpose (Reynolds v. Damrell, 19 N.H. 394; Kimball v. Wellington, 20 N.H. 439; Levy v. Woodcock, 63 N.H. 413; Martin v. Wiggin,67 N.H. 196), may or may not prove to be material questions. However that may be, the plaintiff has leave to strike his name out of the writ.

Case discharged.

All concurred.