Draffen v. United States Fidelity & Guaranty Co.

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SEAWELL, J.

This is an action against the surety on an injunction bond. Judgment went for the plaintiffs and the defendant appeals.

It appears that the plaintiff and her husband, since deceased, leased oil land to one Gildner, who assigned to the Beaver State Oil Company. After the lessors had declared the lease forfeited for violation of the provisions thereof, the Beaver State Oil Company obtained a temporary injunction restraining the lessors from interfering with the possession, occupation and use of said land and the oil-well, equipment and appurtenances by the Beaver State Oil Company. The bond here sued on was issued in support of said injunction. Pursuant to said injunction, which was served on plaintiffs on January 10, 1925, they surrendered possession on said date to the Beaver State Oil Company, and five days thereafter the lease was assigned to the Julian Petroleum Corporation. The action in which the injunction was obtained was dismissed for lack of prosecution on July 25, 1927, whereupon plaintiffs brought action on the injunction bond. Defendant’s motions for a non-suit and instructed verdict respectively being denied it rested its case without offering any testimony on its behalf. Judgment went for the plaintiffs for the principal sum of the bond.

Upon this appeal the main contention of the appellant is that any injury suffered by plaintiffs was occasioned by the acts of the Julian Petroleum Corporation and not by the acts of the Beaver State Oil Company, or its servants, agents or employees, and therefore said damage could not have been sustained “by reason of said temporary injunction” and for which defendant may be held liable as surety on the injunction bond.

The amount of damages sustained by plaintiffs which it is claimed is the proximate result of the wrongful issuance of the temporary injunction are far in excess of the sum named in the bond.

At the time the injunction was issued plaintiffs were in possession of the demised premises and the well was producing. The Julian Petroleum Corporation, assignee of the lease subsequent to the issuance of the injunction and the execution of the bond herein sued on, took the well

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