Crate v. Kohlsaat

Gary', J.

The question upon this record is whether the Circuit Court ought to have awarded to the appellant more damages.

The decree is: “ This day again came the parties, by their respective solicitors, and thereupon this cause came on tobe heard upon the suggestions in writing filed by the defendant of the damages sustained by him by reason of the wrongful suing out by the complainant of the injunction granted in this cause against the defendant, and the court having heard the evidence and the argument of counsel, and being now fully advised in the premises, the court finds that by reason of the wrongful suing out by the complainant of the injunction in this case the defendant was compelled to, and did pay out the sum of $771 for the fees and charges of his solicitors and counsel for services necessarily rendered by them in and about procuring a dissolution of said injunction, and that he was compelled to and did lose rents of the premises described in the complainant’s- bill to the amount of $1,446 by reason of the wrongful suing out by the complainant of said injunction, and that the damages sustained by the defendant by reason of the wrongful suing out by the complainant of said injunction, amount in all to the sum of $2,227.

“ The court further finds that at the time of the granting of said injunction the said complainant was by the court required to and did execute and file herein a bond, as provided by law, in the penal sum of §500, with O. C. Kohlsaat as security, conditioned for the payment to the defendant of all such costs and damages as should be awarded against the complainant in case said injunction should be dissolved, which said bond is the only bond filed by the complainant in this case, and that by reason thereof the liability of the complainant to the defendant on account of the damages sustained by the defendant by reason of the wrongful suing out by the complainant of said injunction is limited to said sum of $500.

“ It is therefore ordered, adjudged and decreed by the court that the complainant pay to the defendant within ten days from the date of the entry hereof the sum of $500, as damages sustained by the defendant by reason of the wrongful suing out by the complainant of said injunction.”

As we read the statute, the amount and condition of the bond given, or whether one be given or not on suing out an injunction, have or has no connection with awarding damages against the complainant himself, in case it is dissolved. It is not necessary that we should distinguish Sturgis v. Knopp, 33 Vt. 486, and Lawton v. Green, 64 N. Y. 326, from this case. The statute here governs. That is—Sec. 12, Chap. 69—“In all cases where an injunction is dissolved by any court of chancery in this State, the court, after dissolving the injunction, and before finally disposing of the suit, upon the party claiming damages by reason of said injunction suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require and to equity appertain, to the party- damnified by such injunction, and may award execution to collect the same.” The case of Walker v. Pritchard, 135 Ill. 103, accords in its reasoning with this construction. The brief of the appellee urges that the findings in the decree are not findings of facts, but of conclusions, which this court may not act upon, as the evidence is not in this record. That, if the findings are of facts, and either party wished to dispute them, he should have preserved the evidence, is abundantly settled. Brown v. Miner, 21 Ill. App. 60, and cases there cited. The findings are suificiently specific. Moore v. School Trustees, 19 Ill. 83; Walker v. Carey, 53 Ill. 470.

It follows that the court should have awarded for damages 82,227, and the decree is reversed and the cause remanded with directions so to do.

Reversed and remoulded.