Prader v. Grim

Baldwin, J. delivered the opinion of the Court—

Terry, C. J. concurring.

The defendants are sureties on an undertaking, executed to procure for one White a temporary injunction restraining the plaintiff from transferring or disposing of certain property, etc.

The Judge made an order in this form : “ On filing the complaint in this cause, and bond in the sum of one thousand dollars, let the defendants show cause before this Court on Friday next, the 29th August, 1856, at the opening of the Court on that day, why an injunction should not issue in accordance with the prayer of the complaint; and in the meantime let an order issue restraining the defendants, as prayed for in said complaint.” The order issued, after reciting these matters, and the citation to appear on the 29th August, proceeds : “ In the meantime you, the said Prader, are enjoined,” etc. •

The undertaking was made by defendants to Joseph Prader, *587 William. A. Brader, and Prescott Bobinson (Beceiver), and after reciting the facts, is conditioned generally to pay damages.

The case was continued, nothing having been done by the Court in reference to this preliminary order of injunction until the 20th September, when, upon a showing by the plaintiff here, the Court required a new bond of White, in the penalty of two thousand five hundred dollars, which was given, with new sureties.

On the 10th October, afterward, the Court dissolved the restraining order, and the motion of White for injunction was denied. On the 27th of the same month White’s suit was dismissed.

The damages complained of are for injury sustained by the plaintiff between the giving of the first and second bond; and plaintiff insisted that he was entitled to recover damages after the day set for the hearing of the motion for this preliminary injunction, viz : 29th August, 1856, and also for an Attorney's fee for procuring the injunction to be dissolved.

The first question turns on the meaning of the order, for the undertaking is broad enough to cover these damages, unless restrained by the order. The order did not spend its force on the day set for the hearing. The restraint was not designed to be limited by a date, but by an event. The order was made to give the Court an opportunity of acting on the application, and to keep the property in litigation within the power of the Court until it did so act.

The language of the order is not that the defendant be restrained in the meantime, but in the meantime let an order issue restraining, etc. If, however, this were the language, the proper meaning, probably, would be, that the interim spoken of was designed to embrace the period intervening between the date of the mandate and the hearing of the application. If, from any cause, the Judge took no order on the 29th August, the defendant could not have removed the property. If this be the true construction of this order, as we think it is, the Court erred in refusing to permit the plaintiff to prove damages beyond the.. 29th August. .. ».

If the counsel fee were for procuring the dissolution of, and defending against, this order, that is a ground of “ recovery *588 within the meaning of the undertaking; and this though the actual payment of the money were beyond the time limited, if the retainer were before. ( 3 Cal. 217 .)

But, for the first errer assigned, the judgment must be reversed and cause remanded.