Fowler v. Frisbie

By the Court, Crockett, J.: This is an action on an injunction bond, in which the undertaking is in the usual form, to wit: that the plaintiff in that action will pay to the parties enjoined such damages, not exceeding the sum named therein, as such parties may [35]sustain by reason of the injunction, “if the said District Court finally decided that the said plaintiff was not entitled thereto.” On the trial it appeared that the Court entered the following order:

“In this cause it is by the Court now here ordered that the defendants’ motion to dissolve the injunction herein be and the same is hereby granted; and that the injunction heretofore granted therein be and the same is hereby dissolved, vacated, and set aside.”

It does not appear on what ground the injunction was dissolved, and the defendants insist that this order does not establish the fact that the District Court finally decided that the plaintiff in that action was not entitled to the injunction when it issued, and consequently that the plaintiffs have failed to show a breach of the undertaking.

But as we construe the order, it is, prima facie, at least, an adjudication that there was no foundation for the injunction, and that it ought not to have issued. If the fact was otherwise, it was incumbent on the defendants to see that the order contained proper recitals, showing that the injunction was dissolved for other reasons, or to have made the fact appear in some other proper method. Standing alone, and without explanation, the order was an adjudication that the injunction ought not to have issued.

The action in which the injunction issued was an action at law to recover the possession of a tract of land containing about fifteen hundred acres, and a part of the Suscol Bancho; in which action there was a prayer for an injunction pendente lite. In the complaint it was alleged as a foundation for the injunction that there was standing and growing on the premises valuable grasses, suitable for hay and for pasturage, and that the portion of the premises occupied by the defendants therein was suitable only for such purposes, and that, owing to the peculiar scarcity of growing grass during that season, the loss of it could not be computed in damages, and that [36]