Rice v. Cook

Fitzgerald, C. This is an action upon an undertaking for injunction to recover damages alleged to have been sustained by reason of the wrongful issuance thereof.

It is substantially alleged that on the twenty-seventh day of January, 1887, plaintiff was lawfully possessed of the tract of land described in the complaint, and that while so possessed, he was engaged in plowing and preparing it for seeding; that on said date the defendant Cook commenced an action against the plaintiff herein, in the superior court of Monterey County, in which he procured an injunction to be issued and served on plaintiff, enjoining him from plowing or seeding said land, or using the same for any purpose whatever, or from using the grasses then growing or standing thereon; that upon the issuing of the injunction, the defendants Hughes and Iverson, as sureties, executed their undertaking to plaintiff to pay to him such damages, not exceeding the sum of one thousand dollars, as he might sustain by reason of the injunction, if the superior court of Monterey County should finally decide that the plaintiff Cook was not entitled thereto; that the condition of the undertaking was broken by the dissolution of the injunction, to the damage of plaintiff in the sum of eight hundred dollars.

The answer specifically denies each and every allegation of the complaint.

The case was tried by the court, a trial by jury having been expressly waived, and judgment rendered in favor of plaintiff, in the sum of $272.50, from which [147]judgment, and the order denying defendants’ motion for a new trial, this appeal is taken.

It is claimed by appellant that the condition of the injunction bond was not broken by the judgment dissolving the injunction, for the reason that Cook recovered judgment for a part of the land sued for, in the action in which the injunction was issued, from which it necessarily follows that the injunction was not wrongfully issued, and that therefore the plaintiff is not entitled to recover damages on the injunction bond.

Section 529 of the Code of Civil Procedure provides that “on granting an injunction, the court or judge must require .... a written undertaking on the part of the plaintiff, with sufficient sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the court finally decide that the plaintiff was not entitled thereto.”