Scott v. Frank

Ládd, J.

i. damages on »nctl°n The bond sued on is conditioned for the payment of all damages, occasioned by a writ of injunction restraining the defendants in the suit of Frank v. Board of Directors of Keg Creek District Township and others from interfering .with the former’s possession of an acre of land sought to be appropriated for school purposes. To sustain an action for damages 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. If rightfully awarded, but afterwards properly dissolved because of matters done or arising subsequent to its issuance, there can be no recovery of damages. In other words, the parties whose wrongdoing has made the writ necessary cannot justly complain of not being allowed expenses for remedying and readjusting a situation for which they alone are responisble. Sutherland, Dam. (1st Ed.) volume 2, page 78; Massie v. Sebastian, 4 Bibb, 437; Lampton v. Usher's Heirs, 7 B. Mon. 57; Findlay v. Carson, 97 Iowa, 537; N. Y., W. S. & B. R. Co. v. Omerod, 29 Hun, 274; Palmer v. Foley, 71 N. Y. 106. See Pierson v. Ells, 46 Hun., 336; Creek v. McManus, 13 Mont. 152 (32 Pac. Rep. 675).

2 pleadings: amendment. No doubt the final decree entered in the injunction suit is, as contended by. appellee, to be regarded as res adjudicata in this action of all issues therein decided. Shenandoah Nat. Bank v. Read, 86 Iowa, 136. The meirts of the original controversy will not be re-examined, but 'this does not preclude inquiry as to precisely what was determined. To aid in doing this the entire record, including the pleadings, was admissible in evidence. Campbell v. Ayres, 6 Iowa, 339; Hopkins v. State, 53 Md. 502; Garrett v. Logan, 19 Ala. 344. Did the court decree that the restraining order was improvidently obtained, or merely that, owing to the subsequent condemnation of the land, the injunction should be dissolved? The original petition alleged that there was an orchard on the acre sought to be appropriated by the board of directors as a site for a new scboolhouse, and that said schoolhouse would be within forty rods from a dwelling house. Had this been all, we might agree with the district court that, even though the motion to dissolve the writ of injunction restraining said board from interfering with Frank’s possession was overruled, yet, as it finally appeared that on these allegations he was not entitled to a writ, damages might be awarded on the injunction bond. See Bank of Monroe v. Gifford, 65 Iowa, 648. But other facts existed at the beginning of the action, though not then stated in the petition, amply sufficient to support the writ. These were first asserted in resistance of the motion to dissolve, and not until it had been submitted did Frank file the amended and substituted petition, in which he for the first time alleged that no notice of the condemnation proceedings had been served upon him, and that the description of the land to be appropriated was uncertain, so that it could not be located. On these grounds the motion to dissolve was overruled, and they were only obviated by again condemning the acre desired. The defendants in that action then were rightly restrained from, interfering with Frank’s property. That the grounds for so deciding were first stated in an amendment after the issuance of the writ is not important. The relief sought was the restraining order, the facts existed justifying its issuance, and all the amendment did was to aver additional facts in support of the same cause of action. In such circumstances the amendment is regarded as a continuation of the original pleading, and as relating back to the commencement of the suit. 1 Encyclopedia, Pleading & Practice, 621; Seevers v. Hamilton, 11 Iowa, 66; School Town of Monticello v. Grant, 104 Ind. 168 (1 N. E. Rep. 302); Fleenor v. Taggart, 116 Ind. 189 (18 N. E. Rep. 606); Schuyler Nat. Bank v. Bollong, 28 Neb. 684 (45 N. W. Rep. 164); Verdery v. Barrett, 89 Ga. 349 (15 S. E. Rep. 476); Agee v. Williams, 30 Ala. 636; Brockaway v. Thomas, 32 Ark. 311; Clark v. Delaware etc. Canal Co., 11 R. I. 36. See Branch of State Bank v. Morris, 13 Iowa, 136; Citizen’s National Bank v. Converse, 105 Iowa, 669.

3. waiver. If there were any merit in appellee’s suggestion that the omission to mention these matters in the first petition was a waiver of the objections interposed, it is enough to say that no such issue was raised. The right amen¿e¿ an¿ substituted petition was upheld, and in the amended and substituted answer ■thereto the illegality of the first condemnation proceedings is expressly admitted, and the subsequent proceedings by which one acre of Frank’s land was lawfully appropriated for school purposes was averred as a ground for the dissolution of the restraining order previously obtained. Up to that time the defendants in the action were in the wrong, ■and that wrong justified the injunction. The interposition ■of the injunction as an impediment to the appropriation of the school house site resulted from the erroneous proceedings of the board of directors. No good reason can be suggested for relieving the board from the burden óf removing it, and neither such board nor its assignee ought to recover the expenses incurred in so doing. — Be VERSED.