Lippitt & Lippitt v. Smallman

KERRIGAN, J.

This is an appeal in an action brought to recover upon an undertaking given for the issuance of an injunction in a case entitled “Amelia H. Smallman et al.

v.

Lippitt

&

Lippitt, in which action the undertaking in question was given by the plaintiffs therein, with appellants Frank V. Bell and Michael Kraker as sureties. The prayer in that action was for a judgment enjoining and restraining Lippitt & Lippitt from procuring in a prior action a writ of assistance pending the determination and judgment of the court in the action. The judge before whom the suit was pending, in response to an application by the plaintiff therein for a temporary injunction, issued on the nineteenth day of July, 1909—the day the suit was filed.—an order entitled “Order to show cause and Restraining Order,” which cited the defendant to appear at a time and place specified, and show cause why it should not be “enjoined and restrained pending the determination of the above entitled action, ’ ’ from committing certain acts. The order further provided: “It is further ordered that pending the determination and judgment of the court in this action said defendant Lippitt & Lippitt be enjoined and restrained” from doing certain acts “upon the plaintiff giving a bond in the sum of $500.”

In the present action judgment went for plaintiff in the sum of three hundred dollars and costs against defendants Bell and Kraker, who have appealed from the judgment and also from an order denying their motion for a new trial.

It is claimed by appellants that the prayer of the complaint in the action above referred to, and in which they filed the undertaking here sued upon, simply asks for a judgment for an injunction and for an order to show cause why a temporary injunction should not issue, but does not ask for a

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temporary restraining order pending the hearing of the order to show cause; and in view of the fact that no injunction was ever issued in that action as asked for in the complaint, and that no such injunction or restraining order as was mentioned and referred to in the undertaking upon which this action is brought was ever issued, the plaintiff is entitled to no relief. In other words, they invoke the old doctrine of