Dougherty v. Dore

Per Curiam. In Clark v. Clayton, 61 Cal. 634, we held that an action brought upon an undertaking for an injunction after the dissolution of the injunction, but before the final determination of the action in which the injunction ivas obtained, was prematurely brought. There are several reported cases Avhich sustain that doctrine. (Gray v. Veirs, 33 Md. 159; Penny v. Holberg, 53 Miss. 567; Bemis v. Gannett, 8 Neb. 236.)

In Dowling v. Polack, 18 Cal, 625, this precise question was not involved,, but the court in its opinion indicates very clearly that its vieAvs upon this question Avere in accord Avith the doctrine of the cases aboAre cited.

In Fowler v. Frisbie, 37 Cal. 34, the court held that an order dissolving an injunction Avas prima faeie, at least, an adjudication that there was no foundation for the injunction, and that it ought not to have issued, and refused to reverse the judgment on the ground that the action Avas prematurely brought, but reversed it on another ground. In the reporter’s statement of the case it is said that “no judgment in Frisbie v. Fowler et al. was offered in evidence.” From which we feel authorized to infer that it did not appear whether or not there had been a final determination of the action in which the injunction was sued out. In the case now before us it does appear that the action in Avhich the injunction Avas sued out was not finally [172]determined until within three years before the commencement of this action. Mo case or text-writer was cited in support of the doctrine laid down in Fowler v. Frisbie, supra, and we very much doubt its soundness.

In High on Injunctions it is said (§ 1649) that “the general rule is that upon the dissolution of an injunction and failure on the part of the obligors to comply with the conditions of the bond, a right of action at once accrues,” and two cases, and two only, viz., Tallahasse R. R. Co. v. Hayward, 4 Fla. 411, and Sizer v. Anthony, 22 Ark. 465, are cited to support that assertion. But in each of those cases the condition of the bond was that the party who sued out the injunction should, in the event of its being dissolved, pay such sum as should be adjudged against him. In the case at bar the defendants’ promise, “that in case said injunction shall issue the said plaintiffs will pay to the said parties enjoined such damages, not exceeding the sum of five thousand dollars, as such parties may sustain by reason of the said injunction if the said District Court finally decide that the said plaintiffs were not entitled thereto.” If our Code had provided for the giving of a bond or undertaking with a condition that if the injunction should be dissolved the obligors would pay the obligee the damages which he might sustain by reason of the injunction, a right of action upon such a bond would undoubtedly accrue as soon as the injunction should be dissolved. Mot because the court had finally decided that the party who sued out the injunction was not entitled thereto, but because the obligors had agreed to pay said damages if the injunction should be dissolved.