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Robinson v. Kellum

Robinson v. Kellum, 6 Cal. 399 (1856)
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Court
California Supreme Court · State Highest Courts
Decided
July 1, 1856
Judges
Heydenfeldt
Citations
6 Cal. 399
Cited by 21
Syllabus
An action on the case will not lie for improperly suing out an injunction, unless it is charged in the declaration as an abuse of the process of Court through malice and without probable cause. If the act complained of is destitute of these elements, the remedy of the injured party is on the appeal bond.
Summary
Appeal from the District Court of the Fifth Judicial District, County of Amador. This was an action on the case to recover $2000 damages for wrongfully suing out an injunction in an action in which final judgment was entered against the plaintiff in that action, defendant herein. It is not averred in the complaint "that the injunction was sued out through malice or without probable cause. The defendant, in his answer, excepts to the complaint as not setting forth facts sufficient to constitute a cause of action, and denies, etc. The case was tried before a jury, who found a verdict for plaintiff for $300. Judgment was entered accordingly, and defendant appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Heydenfeldt

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Mr. Justice Heydenfeldt delivered the opinion of the Court.

Mr. Chief Justice Murray concurred.

*400 An action on the case will not lie for improperly suing out an injunction, unless it is charged in the declaration as an abuse of the process of the Court through malice, and without probable cause. If the act complained of is destitute of these ingredients, then the only remedy of the injured party is an action upon the injunction bond, which is specially provided by the statute as a protection against injury, even without malice.

The judgment is reversed, and the cause remanded.

How later courts describe this case

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Cited by 21 cases

View all citing references →
1877–1878: 11881–1882: 11889–1890: 11893–1894: 11895–1896: 21899–1900: 11909–1910: 11911–1912: 31913–1914: 11931–1932: 11935–1936: 21941–1942: 11955–1956: 11971–1972: 11983–1984: 12019–2020: 12021–2022: 118772026peak 1911 · 3

Relies on it most ⓘ

  1. Vesper v. Crane Co.130 P. 876 (Cal. 1913)
  2. Asevado v. Orr34 P. 777 (Cal. 1893)
  3. Mitchell v. Silver Lake Lodge45 P. 798 (Or. 1896)
  4. Powell v. Woodbury83 A. 541 (Vt. 1912)
  5. Young Chun v. Robinson21 Haw. 368 (1912)
  6. Dickey v. Rosso23 Cal. App. 3d 493 (1972)

Most recent

  1. DG BF, LLC v. Michael RayNo. 2020-0459-MTZ (Del. Ch. June 27, 2022)
  2. Gaume v. N.M. Interstate Stream Comm'n2019 NMCA 064, 450 P.3d 476
  3. Wallace v. Miller140 Cal. App. 3d 636 (1983)
  4. Dickey v. Rosso23 Cal. App. 3d 493 (1972)
  5. Shepherd v. Constructora, S.A220 F.2d 1 (9th Cir. 1955)
  6. Junction Irrigation Co. v. Snow118 P.2d 130 (Utah 1941)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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