Anderson v. Coleman

Myrick, J.: Coleman, the defendant herein, commenced an action against Anderson and Dubois, plaintiffs herein, to obtain a perpetual injunction. The Court allowed a temporary injunction, a bond having been given, and the -same was served on defendants December 29th, 1874. On the 9th of March, 1875, on motion of the defendants in that action, after notice, the Court made an order dissolving the injunction. Ho appeal was taken from that order. Subsequently, judgment went for defendants in [126]that action, on demurrer, which judgment was affirmed on appeal.

This action, commenced March 20th, 1877, was not on the bond, but against Coleman for suing out the writ maliciously, and without probable cause. On the trial, the Court gave judgment of non-suit, and plaintiffs appealed from the judgment and the order denying their motion for a new trial.

Two points are involved in the appeal:

1. Was plaintiffs’ action barred by the Statute of Limitations ?

2. Did plaintiffs offer any evidence of malice ?

First—The writ of injunction was dissolved March 9th, 1875. Plaintiffs’ cause of action, if they had any, was then complete, even if not perfect when the writ was sued out; it was not delayed, or the time postponed, by the fact that Coleman had sixty days in which to appeal from the order dissolving the writ. Plaintiffs at least had two years, from and after March 9th, 1875, in which to commence their action. They did not commence it until March 20th, 1877. Their right of action did not at all depend upon the subsequent proceedings in that suit. It was the writ that they complained of, and the force of that writ was spent upon its dissolution. If plaintiffs ever had a cause of action, it was barred by the Statute of Limitations. (§ 339, Code Civ. Proc.) In our opinion, this disposes of the case.

Judgment and order affirmed.

Thobnton, J., concurred.