Garlington v. Copeland , 43 S.C. 389 ( 1895 )

The opinion of the court was delivered by

Mr. Chiee Justice MoIver.

The controversy in this case grows out of a claim on the part of the defendant, for damages alleged to have been sustained by him by reason of an injunction granted in the outset of the case. It seems that the defendant herein had previously recovered judgment against George F. Young, one of the plaintiffs herein, for a considerable sum of money, under which a levy had been made upon the lands of the said Young. Thereupon, the present action was commenced, mainly for the purpose of recovering a large sum of money claimed tobe due by Copeland, the defendant herein, to the- plaintiffs, and under the allegation that Copeland was insolvent, an injunction was asked for, restraining the sale of the said Young’s property, until the plaintiffs could have an opportunity of establishing their claim against said Copeland, which, without such injunction, would become fruitless. On hearing the .verified complaint, his honor, Judge Pressley, granted a rule requiring Copeland to show cause why the injunction prayed for could not be granted; and in the meantime restraining Copeland from enforcing his judgment against Young.

This rule to show cause was heard by his honor, Judge Cothran, who, upon the pleadings and affidavits submitted, granted an order continuing the restraining order previously granted by Judge Pressley, lintil a decision is made upon the merits, upon the plaintiffs entering into the usual undertaking provided for by statute. One of the reasons given by Judge' Cothran for his action is thus expressed by him: “It is apparent that the defendant herein is greatly embarrassed, if, indeed, he is not insolvent.” From this order Copeland appealed, and his appeal was dismissed, mainly upon the ground that the order of Judge Cothran was not appealable. See Garlington v. Copeland, 25 S. C., 41. So that the result was that the restraining order continued in force until the final decision upon the merits, when, by its own terms, it fell. After stoutly contested litigation, the plaintiffs succeeded in recovering in the Circuit Court a judgment against Copeland, which, upon appeal, and after two hearings in the Supreme Court, was reversed, and complaint dismissed solely upon the ground that the plaintiff had failed to show that they had title to the lands out of which rent was claimed at the time they commenced their action. See Garlington v. Copeland, 32 S. C., 57.

Thereupon, the present proceeding was commenced for the purpose of having the damages assessed, which defendant claims that he sustained by reason of said injunction. The whole matter was referred to Master Barksdale, who heard the testimony and made his report, denying the defendant’s claim for damages. To this report defendant filed exceptions, and the case thus came before his honor, Judge Ernest Gary, who overruled all of the exceptions, and confirmed the master’s report, saying in his order that: “This report is so full and exhaustive, that it'is needless to repeat any of the matter contained therein. After considering it, I am satisfied that the principles of law announced and the findings of fact are correct.” From this order or judgment the defendant appeals upon the several exceptions set out in the record, which are practically identical with the exceptions taken by him to the master’s report.

1, 2 We endorse fully what is said by the Circuit Judge as to the very satisfactory character of the master’s report. The conclusion which he reaches is so well vindicated by the reasoning which he employs and the authorities which he recites, that any attempt on our part to add thereto seems wholly unnecessary, and would involve mere repetitions. For this reason the report of the master should be set out in full in the report of the case.

3 There is, however, another view which may lend some support to the conclusion reached by the master. The undertaking which constitutes the basis of the present proceeding having been lost, its precise terms do not appear in the case, but we must presume that it conforms with the provisions of the statute, which (Code, § 243,) are as follows: “When no provision is made by statute as to security upon an injunction, the court or judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto.” Now, it does not appear that any court has finally decided that the plaintiffs were not entitled to the injunction which they obtained. On the contrary, the Circuit Court expressly held that they were entitled to the injunction, and this court expressly declined to consider that question upon jurisdictional grounds. The fact that the plaintiffs failed to establish their claim against the defendant, does not necessarily show that the injunction was improperly granted in the first instance, for a case may be conceived of, in which a court of equity, as a precautionary measure, and in the interest of justice, might grant an injunction to preserve matters in statu quo until the parties could have the opportunity of having what they honestly conceived to be their rights investigated. That the plaintiffs litigated in the best of faith, and that their claims were not sham and pretensive, abundantly appears in the report of the main ease, found in 32 S. C. Reports, above referred to; and that the injunction never was held to have been improperly granted, but, on the contrary, the effort to have it vacated failed, is also apparent, as well as the fact that it fell simply as an incident to the main case.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.