Dougal v. Eby

Order Dissolving Injunction — Judgment Against Sureties on Injunction Bonds — When Liability on Injunction Bond Arises. 1. Affidavits and papers that are not shown to have been presented to the court or judge thereof at the hearing on a motion to dissolve an injunction, and appear from the judge’s certificate not to have been used or considered by him on such hearing, cannot be considered by this court on appeal from an order made granting or denying such motion. 2. Where the trial court or judge thereof refuses to consider affidavits or other papers or evidence offered on the part of either plaintiff or defendant, exception to such ruling must be saved and the rejected evidence must be incorporated in a bill of exceptions or certified to by the judge as having been presented and rejected in order to be considered on appeal. 3. Where a claim is made against the sureties on an injunction bond for costs, damages or counsel fees on breach of the bond, the sureties ’are entitled to their day in court and the right to defend against the demand, and it is error for the court or judge thereof to summarily enter judgment against the sureties 'on the dissolution of the injunction. (Syllabus by the court.)

APPEAL from District Court in and for Bingham County. Honorable J. M. Stevens, Judge. From an order dissolving a temporary injunction and directing judgment for costs and damages against the sureties on the injunction bond, plaintiff and his sureties appealed. The facts are stated in the opinion. The court erred in not considering the affidavits filed on behalf of appellant herein, upon the hearing to dissolve said temporary injunction. (Rev. Stats. 1887, sec. 4295; Falkenburg v. Lucy, 35 Cal. 52, 95 Am. Dee. 76.) We claim that the court erred in dissolving the temporary injunction on the showing made on behalf of the respondents herein. (Rev. Stats. 1887, secs. 3396, 4295; Staples v. Rossi, 7 Idaho, 618, 65 Pac. 67; Price v. Grice, 10 Idaho, 443, 79 Pac. 387; Myer v. First Nat. Bank, 10 Idaho, 175,77 Pac. 334-336; Eindallv. Lincoln Hardware Co., 8 Idaho, 664, 70 Pae. 1056; McConnell v. Langdon, 3 Idaho, 157, 28 Pac. 403; High on Injunctions, sees. 1133-1135, pp. 1253, 1254; Marks v. Weinstock, Lubin & Co., 121 Cal. 53, 53 Pac. 362.) In this connection we desire to call the court’s attention to the fact that the affidavit for the foreclosure of the chattel mortgage is wholly insufficient under the law, and was never served on the appellant. or anyone else as shown by said record, which was necessary in order to give the officer jurisdiction to proceed with the foreclosure of said chattel mortgage. (Rev. Stats. 1887, see. 3391; Laws 1905, 129; Rev. Stats. 1887, sec. 3392, 3395; Blumaur-Frank Drug Co. v. Branstetter, 4 Idaho, 557, 95 Am. St. Rep. 151, 43 Pac. 575; Marchand v. Ronaghan, 9 Idaho, 95, 76 Pac. 731; Rein v. Calloway, 7 Idaho, 634, 65 Pae. 63.) We contend on behalf of the appellant that said chattel mortgage is null and void as against the appellant herein and those claimed by, through and under him, because the description of the property therein set forth is wholly insufficient to put anyone on notice under the law. (Jones on Chattel Mortgages, sec. 62; 6 Cye. 1022; McConnell v. Langsdon, 3 Idaho, 157, 28 Pae. 403; McDermed v. Hutchison Wholesale Grocery Co., 63 Kan. 884, 65 Pae. 668; Rochelean v. Boyle, 11 Mont. 451, 28 Pae. 872; In re Jones, 123 Fed. 128.) Said chattel mortgage is also defective because it is alleged to be given on a stock of goods with power to sell in the usual course of trade, etc., and is therefore void under the law as to purchase without notice. {Wells, Fargo & Co. v. Alturas Com. Co., 6 Idaho, 506, 56 Pac. 165; Lewiston Nat. Bank v. Martin, 2 Idaho, 734, 23 Pae. 920.) Said chattel mortgage was also defective because it attempts to cover after-acquired goods placed in stock by the mortgagor, and is therefore void as to appellant as bona fide purchaser without notice under the law. (Jones on Chattel Mortgages, secs. 138, 139, 154, 157; 6 Cye. 1041, 1043, 1044; Long v. Hines, 40 Kan. 216, 10 Am. St. Rep. 189, 16 Pac. 339; Mowry v. White, 21 Wis. 417; Cudworth v. Scott, 41 N. H. 456; Jones v. Richardson, 10 Met. 493; Cressey v. Sabre, 17 Hun, 120; Gitting v. Nelson, 86 111. 591; Tomlinson v. Greenfield, 31 Ark. 557; Chapman v. Weimer,A Ohio St. 481; Ottis v. Sill, 8 Barb. 102.) Under our practice, as we understand it, after the dissolution of the injunction, the parties in whose favor the bond was given are required to bring a separate action to enforce their claims against the sureties on the injunction bond. (High on Injunctions, p. 1230, sec. 1642; Boise City v. Bandell, 8 Idaho, 119, 66 Pac. 938; Bice v. Cook, 92 Cal. 144, 28 Pac. 219.) The alleged action or claim on the injunction bond against the sureties Bybee and La Rue was prematurely made and brought, as no right of action had accrued thereon when the alleged judgment in this case is said to have been rendered against the sureties on said bond, as the original ease in which said bond is given-had not been “finally” determined and the right of action on said bond did not accrue until that time. (Rev. Stats. 1887, 4291; High on Injunctions, sec. 1649; Dougherty v. Dore, 63 Cal. 170; Bemis v. Gannett, 8 Neb. 236; Bank of Monroe v. Gifford, 65 Iowa, 648, 22 N. W. 913; Brown v. Galena & M. Co., 32 Kan. 528, 4 Pac. 1013; Gray v. Veirs, 33 Md. 159; Penney v. Holburg, 53 Miss. 567; Cohn v. Lehmon, 93 Mo. 574, 6 S. W. 267.) “The modern doctrine of injunctions for temporary purposes is tersely and correctly stated in 16 American and English Encyclopedia of Law, second edition, 345.....A preliminary injunction will never be granted unless from the pressure of an urgent necessity. The damage threatened, and which it is legitimate to prevent during ,the pendency of the suit, must be in' an equitable point of view, of irreparable character.” (Staples v. Bossi, 7 Idaho, 624, 65 Pac. 67; Kendall v. Lincoln Hardware etc. Co., 8 Idaho, 664, 70 Pac. 1056; McConnell v. Lang don, 3 Idaho, 157, 28 Pac. 403.) All the allegations as to the mortgage being null and void, great irreparable injury, no adequate remedy at law and multiplicity of suits, are mere conclusions of law. The court had power and authority to dissolve or modify, and on dissolving the injunction, to have those damages assessed under its own direction and render judgment against the sureties as an incident to the principal suit. (Tyler Min. Co. v. Last Chance Min. Co., 90 Fed. 15, 32 C. C. A. 498.) We submit the following reasons why the appellant has no cause of action against the respondents, at law or in equity, and no standing before a court of either: 1. Plaintiff alleges the purchase by himself of a stock of goods and a business, in bulk, and fails to allege that the purchase was in accordance with the laws of Idaho, governing such purchases, and hence we claim that even if he had no notice of the mortgage the validity of which he seeks to attack herein, he was not an innocent purchaser. 2. He failed to take an inventory and does not know or even attempt to describe in his pleadings what he purchased of the mortgagor. This is a badge of fraud. (14 Ency. of Law, 516; Chamberlain v. Dorrance, 69 Ala. 40; Cocke v. Carrington Shoe Co. (Miss.), 18 South. 683.) 3. He purposely and negligently mixed and confused the goods purchased with other goods purchased later, which is another and stronger badge of fraud. (7 Cyc. 36; Burns v. Campbell, 71 Ala. 271; Simmons v. Jenkins, 76 111. 479; Merchants’ Nat. Bank v. McLaughlin, 2 Fed. 128, 1 McCrary, 258, and numerous cases cited in 7 Cyc. 36, from Massachusetts, New York, and North Carolina.) 4. Appellant, having bought the stock of the mortgagor with full knowledge of the existence of the mortgage, he was in privity with the parties thereto, and cannot question its validity, and had no other or greater rights than the mortgagor. (Wells, Fargo & Co. v. Alturas Commercial Co., 6 Idaho, 506, 56 Pac. 165; 5 Ency. of Law, 995, citing Cassidy v. Harrelson, 1 Colo. App. 458, 29 Pac. 525; Arnold v. Stock, 81 111. 407; Black v. Robinson, 61 Miss. 54; Sanford v. Duluth etc. Elevator Co., 2 N. Dak. 6, 48 N. "W. 434; Russell v. Fillmore, 15 Vt. 130; Hammond v. Plimpton, 30 Yt. 333; Commercial Nat. Bank v. Davidson, 18 Or. 57, 22 Pac. 517; Martin v. Michael, 23 Mo. 50, 66 Am. Dec. 656; Davis v. Ranson, 18 111. 396; Simpson v. Tose, 31 Kan. 230, 1 Pac. 601; Blumaur-Frank Drug Co. v. Branstetter, 4 Idaho, 557, 95 Am. St. Rep. 151, 43 Pac. 575.) 5. The complaint fails to state either of three facts which are essential, and which must appear in this case, before an injunction can legally stand: (a) That a great or an irreparable injury will be done to plaintiff, unless defendant is restrained and enjoined; (b) That to enjoin defendant will prevent a multiplicity of actions; (c) That the party sought to be enjoined is insolvent. The first two are mere allegations of conclusions of.law. (14 Ency. of PL & Pr. 219, and footnote 1; Bauer v. Platt, 72 Hun, 326, 25 N. Y. Supp. 426; Fellows v. Spaulding, 141 Mass. 89, 6 N. E. 548; Attalla Min. etc. Co. v. Winchester, 102 Ala. 184, 14 South. 565; Balogh v. Lyman, 6 App. Div. 271, 39 N. Y. Supp. 780; 10 Ency. of Pl. & Pr. 954, citing in footnote 1 many cases; 12 Ency. of Pl. & Pr. 1090, 1021, citing two pages of cases in footnote 1, from nearly every state in the Union, and also Gould v. 'Evansville etc. B. Co., 91 U. S. 526, 23 L. ed. 416; Alabama v. Burr, 115 U. S. 424, 6 Sup. Ct. Eep. 81, 29 L. ed. 435.) To justify the court in taking jurisdiction on the ground that a multiplicity of actions will be prevented, the complaint must contain specific allegations setting up the facts and circumstances relied on, that there may appear to be a necessity for equitable interference to prevent unnecessary, annoying or harassing litigation. Mere conclusions will be insufficient. (Bauer v. Platt, 72 Hun, 326, 25 N. Y. Supp. 426,' Farmington Village Corp. v. Sandy River Nat. Bank, 85 Me. 46, 26 Atl. 965; Sang Lung v. Jackson, 85 Fed. 502; Fellows v. Spaulding, 141 Mass. 89, 6 N. E. 548; Attalla Min. Co. v. Winchester, 102 Ala. 184, 14 South. 565; Balogh v. Lyman, 6 App. Div. 271, 39 N. Y. Supp. 780.)