Willson v. McEvoy

By the Court, Rhodes, J. This suit was brought on an injunction bond, executed by the present defendants, to Inches and Calderwood, the defendants in the case of Knowles v. Inches and Calderwood. It is described in the complaint as a “ certain undertaking, whereby they undertook and promised that they would pay all damages, not exceeding the sum of one thousand dollars, that the said Inches and Calderwood should sustain by reason of said injunction, if the Court should finally decide that the said plaintiffs in that suit were not entitled thereto.” Inches assigned the bond to the present plaintiff. The Court found for the defendants, and judgment for costs was entered upon the finding on the 27th of March, 1860. The plaintiff moved for a new trial and filed his statement, and on the 18th day of August, 1860, the motion was “ regularly called up for argument in its order upon the calendar, on motion of defendant’s counsel, no person appearing to object thereto,” as appears from the minutes of the Court, and was then denied. The Court then adjourned for the term.

The plaintiff, on the 10th day of September, 1860, served the defendants with notice of a motion to set aside the order [171]denying the motion for a new trial, and on the 22d day of September the Court set aside the order denying the motion and the defendants excepted to the decision of the Court; and thereupon the Court again denied the plaintiff’s motion for a new trial. The plaintiff filed and served his notice of appeal from the judgment and from the order of the 22d of September, denying his motion for a new trial.

The defendants now insist, that the order made on the 22d day of September, setting aside the order made at the previous term on the 18th day of August, was void. The point is well taken. We so held in Castro v. Richardson, 25 Cal. 49, in affirmance of the repeated decisions of the late Supreme Court, and we are satisfied that our opinion in that case is correct on principle and authority. This disposes of the appeal from the order denying the motion for a new trial, and the statement falls with the motion.

The plaintiff contends that he is entitled to judgment on the findings. The only breach of the bond assigned by the plaintiff is that “the said Inches sustained damages to the amount of one thousand dollars, by reason of said injunction, by being compelled to retain and employ attorneys and counsellors at law, and to pay them large compensation, to wit : to the amount of one thousand dollars to prevent said injunction from being made perpetual and to procure its dissolution.”