Fears v. Riley

MARSHALL, J.

— This case grows out of a case be-

tween tbe same plaintiff and defendants for an injunction to declare void and enjoin tbe enforcement of a judgment for $10,000 in favor of Laura Eiley and against John C. Bears, and involves tbe assessment of damages on tbe injunction bond given in that case for a temporary injunction. After tbe dissolution of tbe injunction, and tbe decree dismissing tbe bill and during tbe same term, Laura Eiley filed .a motion for tbe assessment of her damages on tbe injunclion bond, laying them at $1,600, and at tbe succeeding term Laura Eiley filed an additional motion for assessment of damages claiming $600, and George Eobertson filed a separate motion claiming $750. Tbe court beard the evidence adduced by tbe defendants in support of their motion, the plaintiff introduced no evidence, and assessed the damages -.as follows: . George Eobertson, $250; Laura Eiley, for loss of time and expenses, $21; for attorney’s fees, $750; for interest on amount restrained, $600, total, $1,621. After-wards tbe court allowed Laura Eiley to amend her motion, by interlineation, to. conform to tbe proof. Bears sued out a writ of error to tbe Kansas City Court of Appeals, which court transferred tbe case to this court, bolding that it was a part of tbe injunction case pending in this court, and which is the case first above referred to.

*456 I. The first point relied on by plaintiff is tbat as no damages were asked in tbe defendant’s answer, or allowed by tbe court in tbe judgment dissolving tbe injunction and dismissing tbe appeal, noire can be recovered by motion to assess them. To support tbis contention counsel rely on State ex rel. v. Bick, 36 Mo. App. 114 ; Moore v. Bank, 58 Mo. App. 469 , and Hoffelmann v. Franke, 96 Mo. 533 .

None of these cases support tbe contention. In Hoffelmann v. Franke, supra, tbe court beld tbat a motion to assess damages on tbe injunction bond must be filed at tbe same term at wbicb tbe judgment dissolving tbe injunction was entered (as was done bere), and came too late if filed at a subsequent term, especially where no notice of tbe motion was given to tbe plaintiff, but Sherwood, J., beld tbat tbe court, even then should have ordered tbe notice given, and not have dismissed tbe case. Moore v. Bank, supra, follows Hoffelmann v. Franke, and decides nothing else. State to use v. Bick, supra, was a suit by a garnishee on an attachment bond, and does not touch tbe proposition bere involved.

Tbe motions in tbis case are within tbe practice beld necessary in tbe two cases above referred to, and hence tbis contention will not be further considered.

II. It is next insisted tbat tbe court bad no power to assess tbe damages against tbe sureties on tbe injunction bond. Dorriss v. Carter, 67 Mo. 544 , is relied on to support tbis contention. Tbat was a suit on tbe injunction bond, and tbis court beld tbat no recovery could be bad because no damages bad been assessed in tbe injunction case. It affords no support for tbe contention bere made.

In St. Louis Zinc Co. v. Hasselmeyer, 50 Mo. 180 , tbis court beld tbat in a proceeding against tbe sureties on an injunction bond, “by motion or otherwise,” to assess damages on tbe bond, tbe sureties become parties, and are entitled to appear, defend and appeal. Wbicb means tbat *457 a judgment can be rendered against them on motion under our statute. [R. S. 1889, see. 5500.] This was the procedure adopted and approved in Loehner v. Hill, 19 Mo. App. 141 , and this case was approvingly cited in Hoffelmann v. Franke, 96 Mo. loc. cit. 534. This contention therefore fails.

III. The fact that Lowell, the circuit clerk, and Stead the sheriff, did not join in the motion to asses.s damages is wholly immaterial. They had no interest in the litigation and were only formal parties, and hence were not entitled to any damages. The real parties in interest joined and were before the court.

IY. The appeal from the decree dissolving the injunction was taken without bond, and hence did not operate as a supersedeas, so the motion for assessment of damages on the injunction bond w'as properly and timely made at the same term at which the decree was entered, and was not premature, as plaintiff claims.

This covers all the errors assigned and relied on by the plaintiff, and failing to find any merit in the points raised, and the judgment of the circuit court being clearly right, it is affirmed.

All concur.