Heyman & Co. v. Landers

Appeal from the Sixth District, County of Sacramento.

This was an action to recover damages for the wrongful issuance of an injunction or restraining order. The facts, as detailed by the opinion of the Court, are as follows :

On the third of November, 1856, the plaintiffs brought suit against one Arronson, of Sacramento, to recover the sum of ten thousand and one hundred dollars, and issued an attachment and levied upon his property. On the same day, but subsequent to the levy of the attachment of the plaintiffs, several other creditors of Arronson commenced suits against him, and caused attachments to be issued and levied upon the same property. Judgments in the several suits passed by default, and the plaintiffs immediately issued execution upon the one recovered by them, under which the Sheriff proceeded and sold the property attached. Whilst the property was in the Sheriff’s custody, the other creditors instituted suit to set aside the judgment of the plaintiffs as fraudulent and collusive, and obtained an order from the District Judge, directing the payment of the proceeds of the sale into Court to abide the determination of the suit, upon filing a bond, to be approved by the Clerk, in the sum of one thousand dollars. The order was indorsed upon the complaint in that suit, and filed with it. The undertaking, which is the subject of the present action, was then executed, and the restraining order issued. The condition of the undertaking is to pay such damages, not exceeding the sum of one thousand dollars, as the defendants in that suit might sustain, by reason of the order, if the Court should finally decide that the plaintiffs therein, the creditors, were not entitled thereto. In obedience to the order, the proceeds of the sale, amounting to seven thousand and eleven dollars, were paid into Court, and remained there from December 15,1856, to April 29, 1357, when the suit was decided against the creditors, and it was adjudged that the judgment recovered by the plaintiffs herein was valid, and not fraudulent or collusive, and that they were entitled to the money. The present action is to recover the damages sustained by reason of the restraining order. It appeared in evidence on the trial, that during the period the money was detained in Court it was worth two per cent, interest a month, and that the plaintiffs employed counsel to obtain the discharge of the restraining order, and paid for their services three hundred dollars, which was a reasonable fee. The Court allowed as damages the counsel fee paid, and interest upon the money at the rate of two per cent, a month, and gave judgment for the full amount of the undertaking. From this judgment the defendants appeal, and make the following points : Mrst. That the restraining

order was void, because made before the complaint in the suit of the creditors was filed; Second: That the Court has never decided that the plaintiffs in that suit were not entitled to the restraining order; and, Third. If the defendants are liable upon the undertaking, the rule of damages must be the legal interest of ten per cent, a year upon the money in Court.