Hesse v. Ledesma

HamiltoN, Judge,

delivered tbe following opinion:

This matter comes np upon tbe motion of tbe defendant Westpbaling to require tbe complainant to give a bond in tbe nature of an injunction bond in connection with tbe restraining order wbicb this court issued in October. It bas been argued earnestly. There are several points wbicb will have to be considered.

1. In tbe first place, whether a bond should be required at all. As to that I think tbe course of tbe court is clear. I think there should be a bond of some sort. Tbe court bad not at tbe time that tbe order was granted any idea that tbe bearing would be deferred as long as it bas. It supposed that it was a matter of a few days. It is argued that tbe delay bas been due to tbe defendant Westpbaling, that is to say, bis attorney, Mr. Molina, who was called to tbe States. I- do not remember whether it was in open court, but be certainly told the court that it was not material to decide tbe case before bis return, tbe court not being able to decide it up to a day or two before be left. He returned in January, I believe, and tbe decision was made as promptly as possible after bis return. It was argued that tbis constituted lacbes on bis part wbicb would prevent bim from now asking for a bond. Tbe court cannot take that view of it. It is not a question of lacbes on tbe part of Westpbaling, but a question of wbat is right on tbe part of tbe court. Tbe court bas extended its arm to arrest, in a perfectly proper manner, but still a strong one, tbe exercise of rights wbicb are claimed by a party under a local law, and tbe court would now, after an interval of three months, be glad, so far as it is within its power, to restore the status quo by requiring a bond. Now bow far can tbe court go in that matter ? That is tbe next question. Tbe court is disposed to require a bond now because it would have required a bond at tbe time tbe order was granted if it bad any idea or any reason to foresee that tbe matter would remain undecided as long as it bas. Equity Hule 73, Judicial Code, § 263 [36 Stat. at L. 1162, chap. 231, Comp. Stat. 1913, § 1240].

2. In tbe second .place then, that being established, wbat damages would possibly come within such a bond, so as to .aid tbe court in fixing its amount ? Tbis is not saying, of course, that 1 cent will be due upon a bond. It is simply getting an idea as to wbat comes within tbe scope of tbe bond, leaving for future discussion, if it ever comes up at all, wbat properly can be proved. If tbe court bad required a bond at tbe time of granting tbe order, it might cover costs, counsel fees, cost of translations, receivership expenses, and actual money loss to tbe defendant Westpbaling during its term. It very likely would cover those, and possibly more. Now it bas been said that the property bas deteriorated, I believe about $3,000, by cane taken off. That might mean — I do not say that it does— that the security has been impaired to this extent. I do not know the expense of the translations, but it would hardly exceed a few hundred dollars. Counsel fees I would not like to fix in advance, but they would be certainly some hundreds of dollars. It looks to me as if conservatively the expenses would hardly exceed $5,000, and, at all events, under all the circumstances of the difficulty of communication with principals, I am not disposed to go beyond that. If there is any further damage, I think it could be taken care of in the future, but I do not think it could be more as to anything in the past, and I will fix the amoimt at $5,000, and let it cover damages since the issuing of the restraining order.

3. The objection is made, in the third place, that the court cannot do this because it would be proceeding ex post facto. Of course, a court cannot do anything ex post facto any more than the Constitution permits Congress to do it. Such, however, is not the case. The way this comes up and the only way the court could enforce the provision is to say that unless a bond in the sum of $5,000, conditioned as above, is furnished within forty-eight hours, it will vacate the restraining order. If there is property on the Island to the extent indicated, there ought to be no difficulty in doing that, or even if it is necessary to communicate abroad. Under all the circumstances, the court would hardly feel justified in going beyond two days, because the whole case may be decided in three or four days. This still may leave the defendant without remedy for cost bond, but I do not know any other way to get at that-right now. If that should happen, it would be the fault of the defendant in not moving sooner. I could not require anything until it is asked for, and the most I can do is to fix what I would have fixed when the order was originally made, and enforce it in the only way I can enforce it, by saying that if the bond is not furnished in this short time, the restraining order will be dissolved.