Wardwell Development Corp. v. Board of County Commissioners

ROONEY, Justice.

Appellants appeal from an order denying their motion to enforce liability on a bond given in connection with proceedings in the district court.

We affirm.

Appellants had appealed to the district court from a zoning decision and order of appellee which placed certain lands in Na-trona County in a rural business zone. Ap-pellee then moved for a preliminary injunction to prevent further activity by appellants with reference to such lands pending the appeal. The district court issued the preliminary injunction “pending final determination of the matter on appeal” and directed appellee to execute a $30,000 bond in accordance with the provisions of Rule 65, W.R.C.P.¹ The bond was executed. It conditioned payment to appellants on appellee “having wrongfully obtained a Preliminary Injunction against them * * *.”

Thereafter, the appeal to the district court was dismissed inasmuch as the zoning decision of appellee was a legislative act from which an appeal would not lie. McGann v. City Council of City of Laramie, Wyo., 581 P.2d 1104 (1978). Appellants then filed a motion to enforce liability on the bond. The district court denied the motion, finding, among other things, that:

“1. There was not a wrongful issuance of the preliminary injunction in this matter.

“2. There is no liability established on the bond.” ²

Appellants argue that inasmuch as the dismissal of their appeal was because the district court was without jurisdiction, the issuance of a preliminary injunction by it was wrongful. In support of their argument, they point to the following language in Littleton v. Burgess, 16 Wyo. 58, 91 P. 832, 835 (1907), citing Robertson v. Smith, 129 Ind. 422, 428, 28 N.E. 857, 859 (1891):

“ ‘ * * * [Wjhen a plaintiff files a complaint and bond, and procures an injunction to issue from a court of general jurisdiction, he is, when sued upon the bond, estopped to say that the court granting the injunction was without jurisdiction. They proceed upon the theory that it does not lie in the mouth of one who has affirmed the jurisdiction of a court in a particular matter, to accomplish a purpose, to afterward deny such jurisdiction to escape a penalty.’ * * * ” 91 P. at 835.

However, appellants overlook the fact that they were the ones who improperly invoked the jurisdiction of the district court — not the appellee. In Littleton v. Burgess, supra, the one who invoked the jurisdiction of the court was estopped to avoid bond liability on the basis of lack of jurisdiction in the court. Likewise, the one who invoked the jurisdiction of the court should not be entitled to enforce bond liability solely on the basis that the court lacked the jurisdiction which he invoked.

There may have been something wrongful about the jurisdiction of the court, but there was nothing wrongful about the issuance of the preliminary injunction. It was issued at a time when the district court was properly considering a case before it to determine, among other things, whether or not it had jurisdiction, i.e., whether or not the petition for review was properly before it. Fox Park Timber Co. v. Baker, 53 Wyo. 467, 84 P.2d 736, 120 A.L.R. 1020 (1938).

Aside from the question of whether or not the district court has jurisdiction to consider the petition for review, it would have jurisdiction to enforce the zoning decision by injunction in an appropriate proceeding.

“Any zoning resolution passed by the board pursuant to W.S. 18-5-202(b) and (c) is enforceable in addition to other remedies provided by law by injunction, mandamus or abatement.” Section 18-5-205, W.S.1977.

Affirmed.

1 . Rule 65, W.R.C.P., provides in pertinent part:

“(c) Security. — No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. * * * ”

2 . The bonding company was named as a party defendant, but it failed to enter an appearance after service of the summons and complaint. The district court found it to be in default.